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109.US.75

The reissued letters patent No. 2,979, granted to the Rumford Chemical Works, June 9th, 1868, for an "improvement in pulverulent acid for use in. the preparation of soda powders, farinaceous food, and for other purposes," claimed, in claim 1, "as a new manufacture, the above-described pulverulent phosphoric acid," and, in claim 2, tle manufactura of such acid, and, in claim 8, the mixing with flour of such acid and an alkaline carbonate, so as to make the compound self-raising, on the application of moisture or heat, or both. There was transferred to M., by th Rumford 9 Chemical Works, the -exclusive right to make, sell, and use, in a specified tekritory, for five years, self-raising flor by the use of the acid, he agreeing to make the flour, and to use his skill to introduce it, and to purchase all the acid from the grantor. M. died in less than three months from the date of the grant : Held, under the provisions of f§ 11 and 14 of the act of July 4th, 1836,- 5 Stat. 121, 123, that the right acquired by M. was only that of a licensee ; that the instrument of license did not carry such right to any one but him personall'y ; and -that such right did not, on his death, pass to his administrator, so as to authorize a suit at law, founded on the license, to be brought in the name of the grantor, for the use of the administrator, to recover damages for an infringement of the patent committed after the death of M., by the manufacture and sale of self-raising flour, by the use of such acid, in said territory.

Various questions are presented by the record, and have been discussed in argument, but there is one which goes to the foundation of the suit, and upon which our views are such as to make it unnecessary to consider any other. The court charged the jury that the interest of Morgan in the patent did not terminate at his death, but passed to his administratrix. The defendants excepted to this charge. The evidence was that Morgan died on the nineteenth of April, 1869, and the defendants asked the court to instruct the jury that the privilege conferred on Morgan by the instrument of February 1, 1869, from the Rumford Chemical Works to him, terminated at his death, and did not pass to his administratrix, and that they should find for the defendants if they believed that Morgan died on the nineteenth of April, 1869. The court refused to give such instruction, and the defendants excepted. It is apparent that what was granted to Morgan was only the exclusive right to use, within the territory specified, the patented acid in making self-raising flour, and to use and sell in said territory the flour so made. The acid used in making the self-raising flour was all of it to be purchased from the Rumford Chemical Works or its agents. No right was granted to make the acid, or to use it or sell it otherwise than as an ingredient in the self-raising flour. The effect of the grant made by the two instruments of February 1, 1869, is subject to the provisions of section 11 of the act of July 4, 1836, (5 St. at Large, 121,) which was the statute in force at the time, and provided as follows: 'Every patent shall be assignable at law, either as to the whole interest or any undivided part thereof, by any instrument in writing; which assignment, and also every grant and conveyance of the exclusive right under any patent, to make and use, and to grant to others to make and use, the thing patented within and throughout any specified part or portion of the United States, shall be recorded in the patent-office within three months from the execution thereof.' By section 14 of the same act it was provided that damages for making, using, or selling the thing whereof the exclusive right is secured by a patent, 'may be recovered by action on the case, in any court of competent jurisdiction, to be brought in the name or names of the person or persons interested, whether as patentees, assignees. or as grantees of the exclusive right within any throughout a specified part of the United States.' Morgan was not an assignee of the entire right secured by the patent, nor of any undivided part of such entire right, nor of the exclusive interest in such entire right for the territory specified. He did not acquire the whole of the exclusive right or legal estate vested in the Rumford Chemical Works by the patent for the said territory, leaving no interest in his grantor for that territory, as to anything granted by the patent. It is well settled that a transfer of a right such as Morgan acquired is not an assignment, nor such a grant of exclusive right as the statute speaks of, but is a mere license. Curtis, Pat. (3d Ed.) § 179; Gayler v. Wilder, 10 How. 477, 494. This being so, the instrument of license is not one which will carry the right conferred to any one but the licensee personally, unless there are express words to show an intent to extend the right to an executor, administrator, or assignee, voluntary or involuntary. In Troy Iron & Nail Factory v. Corning, 14 How. 193, 216, this court said: 'A mere license to a party, without having 'his assigns' or equivalent words to them, showing that it was meant to be assignable, is only the grant of a personal power to the licensee, and is not transferable by him to another.' *In the present case there are no words of assignability in either instrument. The right is granted to Morgan alone, to him personally, with an agreement by him that he will enter on the manufacture of the self-raising flour, and that he will use all his business tact and skill to introduce and sell the flour. It is apparent that licenses of this character must have been granted to such individuals as the grantor chose to select because of their personal ability or qualifications to make or furnish a market for the self-raising flour, and thus for the acid, all of which was to be purchased from the grantor. The license was made revocable by the grantor on the failure of Morgan to perform his covenants and agreements. We have not overlooked the fact that the privilege granted to Morgan was to continue for five years. This means no more than that he was to have it for five years, if he should live so long, and if the patent should not have expired. But it cannot have the effect to impart assignability to the privilege, or to prolong its duration beyond that of his life. Respect for the supreme court of Tennessee induces us to say that we have carefully examined the opinion of that court in Oliver v. Morgan, 10 Heisk. 322. That was a suit brought by the widow and administratrix of Morgan against Oliver, Finnie & Co., in a court of the state, to recover compensation under an agreement made between him and them, February 15, 1869, and which was to continue till April 1, 1870, whereby he was to prepare self-raising flour for them under the license to him from the Rumford Chemical Works, and they were to pay him so much a barrel. In that suit it was held that Mrs. Morgan could recover not only for the time prior to Morgan's death, but for the subsequent time, and that the license to Morgan vested in him an interest which passed, at his death, to his personal representative. The proceedings in that suit are made a part of the record on this writ of error; but the suit in the circuit court was tried wholly on the view that the question as to the construction of the instruments of February 1, 1869, was an open one, and was a question of general law, and not one as to a rule of property, and that there was nothing in the former suit which, as res adjudicata, could be binding between the parties in this suit as an estoppel. There is nothing in the pleadings which raises the question of such an estoppel. The lower state court having, in the prior suit, rendered a judgment for the plaintiff, the supreme court of the state, while giving the interpretation before mentioned of the rights of Morgan, reversed the judgment for errors in other respects, and awarded a new trial. Afterwards there was, in the lower court, a verdict by consent, followed by a judgment for the plaintiff, for a less sum than the amount of the first verdict and judgment. Moreover, the present suit is one in a court of the United States, brought under the provisions of an act of congress, for the infringement of letters patent. The former suit arose out of a contract between Morgan and Oliver, Finnie & Co., and was brought to recover damages for the breach of that contract. Under these circumstances, the question as to the rights of Morgan under the patent must be regarded as one to be passed upon in this suit as an original question, as if there had been no former suit. Giving to the opinion of the supreme court of Tennessee that consideration which is due to the force of reasoning in the views which it announces, we are unable to concur in the construction it gave to the license to Morgan. Accordingly, the judgment of the circuit court is reversed, with direction to award a new trial.

109.US.426

A suit was begun, within the seven years prescribed by the Statute of Limitation of tlie Code of Tennessee, in the Circuit Court of the United States forithe Western District of Tennessee, for'the recovery of land, which was dismissed for want of jurisdiction, by reason of the omission in the pleadings of a jurisdictional fact which actually existed. Within one year thereafter the plaintiff in the former suit commenced another suit in the same court against the same parties, to recover the same land, and set up the jurisdictional fact: Held, 1. That, although the second suit was begun more than seven years after the cause of action arose, it was within the saving clause of article 2755 of the Code of Tennessee, providing that: "If the action is commenced within the time limited, but the judgment or decree is rendered against the plaintiff and upon any ground not concluding his right of action, or where the judgment or decree is rendered against the plaintiff and is arrested or reversed on appeal, the plaintiff, or his reuresentatives and privies, as the case may be, may from time to time commence a new action within one year after the reversal or arrest." 2. The doctrine that a dismissal of a suit for want of jurisdiction is no bar to a second suit for the same cause of action reaffirmed and the aulhorites cited.

The question presented by the record is the sufficiency of the plaintiffs' replication to the defendants' plea of the seven-years' statute of limitation. The limitation relied on by defendants is that prescribed by article 2765 of the Code of Tennessee, which is as follows: 'No person, or any one claiming under him, shall have any action, either at law or in equity, for any lands, etc., but within seven years after the right of action has accrued.' The plaintiffs in error contend that their present action is saved from the bar of this statute by the provision of article 2755 of the Code, which is as follows: 'If the action is commenced within the time limited, but the judgment or decree is rendered against the plaintiff upon any ground not concluding his right of action, or when the judgment or decree is rendered in favor of the plaintiff and is arrested or reversed on appeal, the plaintiff or his representatives or privies may commence a new action within one year after the reversal in arrest.' The question of law upon which the parties are at issue is whether the judgment rendered February 24, 1877, by which the suit begun December 31, 1873, was dismissed, the dismissal being on the ground that the court had no jurisdiction of the cause of action set out in the declaration, falls within the saving of this section as being rendered on a ground not concluding the plaintiffs' right of action. It is well settled that the judgment of a court dismissing a suit for want of jurisdiction does not conclude the plaintiffs' right of action. In Walden v. Bodley, 14 Pet. 156, it was said by this court: 'A decree dismissing a bill generally may be set up in bar of a second bill having the same object in view, but when the bill has been dismissed on the ground that the court had no jurisdiction, which shows that the merits were not heard, the dismissal is not a bar to the second suit.' So in the case of Hughes v. U.S. 4 Wall. 232, this court declared: 'In order that a judgment may constitute a bar to another suit it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases, and must be determined on its merits. If the first suit was dismissed for defect of pleadings or parties, or a misconception of the form of proceeding, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit.' See also, Greenl. Ev. §§ 529, 530, and cases there cited. These cases would seem to settle the question against defendants in error, for they decide that the dismissal of a suit for want of jurisdiction is upon a ground not concluding the right of action. Defendants in error, however, contend that the bringing of a suit in a court having no jurisdiction thereof was gross negligence, and that the current of authority is against extending the terms of the statute to let in one guilty of it. Cases might be supposed, perhaps, where the want of jurisdiction in the court was so clear that the bringing of a suit therein would show such gross negligence and indifference as to cut the party off from the benefit of the saving statute, as if an action of ejectment should be brought in a court of admiralty, or a bill in equity should be filed before a justice of the peace. But the suit between these parties, which was begun December 31, 1873, is far from being such a case. There is nothing in the record to show that it was dismissed for any inherent want of jurisdiction in the court in which it was brought. We think that on December 31, 1873, when said first suit was brought, the circuit courts of the United States, under the second section of the act of congress of March 3, 1833, entitled 'An act further to provide for the collection of duties on imports,' (4 St. 632,) had jurisdiction of a suit brought to recover lands purchased at a sale for taxes made under authority of the act of June 7, 1862, for the collection of taxes in insurrectionary districts, where the title so derived was disputed by defendants. The defect was in the declaration, which, although it averred that plaintiffs claimed title under the revenue laws of the United States, did not aver that their title in that respect was disputed by defendants. Had such an averment been made, the jurisdiction of the court would have appeared on the face of the declaration. Ex parte Smith, 94 U. S. 455. The first suit was therefore dismissed, because the declaration did not state the jurisdictional facts upon which the right of the court to entertain the suit was brought. In other words, the case was dismissed for a defect in pleading. In the present suit the defect of the declaration in the first suit is supplied. We are of opinion, therefore, that the plaintiffs in error are entitled to the benefit of article 2755 of the Code of Tennessee, for their judgment in the first suit was not upon any ground concluding their right of action, nor have they been guilty of such negligence or carelessness in the bringing of their first suit as should exclude them from the benefit of the said article. In support of the proposition that plaintiffs in error have not been guilty of such negligence as should exclude them from the benefit of article 2755, the case of Cole v. Mayor, etc., 5 Cold. (Tenn.) 639, is much in point. See, also, Memphis & C. R. Co. v. Pillow, 9 Heisk. (Tenn.) 248; Weathersly v. Weathersly, 31 Miss. 662; Woods v. Houghton, 1 Gray, 580; Coffin v. Cuttle, 16 Pick. 386; Givens v. Robbins, 11 Ala. 156, Skillington v. Allison, 2 Hawks, (N. C.) 347; Lansdale v. Cox, 7 J. J. Marsh. 394; Phelps v. Wood, 9 Vt. 404; Spear v. Newell, 13 Vt. 288; Mathews v. Philips, 2 Salk. 425; Kinsey v. Hayward, 1 Ld. Raym. 434. The judgment of the circuit court must be reversed, and the cause remanded to the circuit court for further proceedings in conformity with this opinion.

109.US.238

1. The common-law right of action against a collector to recover back duties illegally collected is taken away by statute, and a remedy given based on statutory liability, which is exclusive. 2. The time fixed by statute for commencing this action is within ninety days after the adverse decision of the secretary of the treasury on appeal, but if the secretary fail to render a decision within ninety days, the. importer has the option either to begin suit, treating the delay as a denial, or to await the decision, and sue within ninety days thereafter. 3. The limitation laws of the State in which the suit is brought do not fur. nish the rule for determining whether the action is brought in time.

This action was brought May 8, 1879, by the plaintiffs in error, in the supreme court of New York, to recover money alleged to have been illegally exacted by the collector for customs duties, and was removed by the defendant by writ of certiorari to the circuit court of the United States for that district. On the trial it appeared that the several amounts alleged to have been illegally exacted were paid under protest, duly made, on various dates from April 26, 1871, to November 29,* 871; that within 90 days from the date of each payment an appeal from the decision of the collector had been duly taken to the secretary of the treasury, and that no decision by that officer, in any of the cases, had been rendered prior to the commencement of this action; and that this suit was not brought until after 90 days had elapsed from the date of the latest appeal, and not until after the lapse of more than six years from the expiration of that period. The defendant pleaded in bar, besides other defenses, that the cause of action sued upon did not accrue within six years before the commencement thereof, that being the limitation prescribed by the statute of New York, then in force, for actions upon contracts, obligations, or liabilities, express or implied, other than those upon judgments or decrees of courts of the United States, or of courts of any state or territory within the United States, and those upon sealed instruments. The court thereupon directed a verdict in favor of the defendant, to which exception was duly taken, and for that alleged error the judgment thereon is now brought into review. The cause of action arose under the act of June 30, 1864, (13 St. 202,) the fourteenth section of which is now section 2931 of the Revised Statutes. It distinctly provides that on the entry of any merchandise, the decision of the collector of customs at the port of importation and entry, as to the rate and amount of duties to be paid on such merchandise, and the dutiable costs and charges thereon, shall be final and conclusive against all persons interested therein, unless the owner, importer, consignee, or agent of the merchandise shall, within 10 days after the ascertainment and liquidation of the duties by the proper officers of the customs, give notice in writing to the collector on each entry, if dissatisfied with his decision, setting forth therein, distinctly and specifically, the grounds of his objections thereto, and shall, within 30 days after the date of such ascertainment and liquidation, appeal therefrom to the secretary of the treasury. The decision of the secretary on such appeal shall be final and conclusive, and such merchandise shall be liable to duty accordingly, unless suit shall be brought within 90 days after the decision of the secretary of the treasury on such appeal, for any duties which shall have been paid before the date of such decision on such merchandise, or costs or charges, or within 90 days after the payment of duties paid after the decision of the secretary. 'No suit shall be maintained in any court for the recovery of any duties alleged to have been erroneously or illegally exacted, until the decision of the secretary of the treasury shall have been first had on such appeal, unless the decision of the secretary shall be delayed more than ninety days from the date of such appeal in case of an entry at any port east of the Rocky mountains, or more than five months in case of an entry west of those mountains.' The common-law right of action to recover back money illegally exacted by a collector of customs as duties upon imported merchandise, rested upon the implied promise of the collector to refund money which he had received as the agent of the government, but which the law had not authorized him to exact; which had been unwillingly paid, and which, before payment to his principal, he had been notified he would be required to repay; and involved a corresponding right on his part to withhold from the government, as an indemnity, the fund in dispute. The manifest public inconveniences resulting from this situation induced congress, by the act of March 3, 1839, c. 82, (5 St. 348, § 2,) to alter the relation between these officers and the United States by requiring them peremptorily to pay into the treasury all moneys received by them officially, without regard to claims for erroneous and illegal exactions. It was provided, however, therein, that the secretary of the treasury himself, on being satisfied that, in any case of duties paid under protest, more money had been paid to the collector than the law required, should refund the excess out of the treasury. The legal effect of this enactment, as was held in Cary v. Curtis, 3 How. 236, was to take from the claimant all right of action against the collector by removing the ground on which the implied promise rested. Congress, being in session at the time that decision was announced, passed the explanatory act of February 26, 1845, which, by legislative construction of the act of 1839, restored to the claimant his right of action against the collector, but required the protest to be made in writing at the time of payment of the duties alleged to have been illegally exacted, and took from the secretary of the treasury the authority to refund conferred by the act of 1839, (5 St. 349, 727.) This act of 1845 was in force, as was decided in Barney v. Watson, 92 U. S. 449, until repealed by implication by the act of June 30, 1864, (13 St. 214.) The fourteenth section of the act last mentioned is, as already cited, in substance, the present section 2931 of the Revised Statutes, providing for the appeal to the secretary of the treasury, and the sixteenth section, being the present section 3012 1/2, Rev. St., restores to the secretary of the treasury the authority to refund moneys paid under protest and appeal, which he shall be satisfied were illegally exacted, originally conferred upon him by the act of 1839. And the provision of the act of 1845, which construed the act of 1839 so as to restore to the claimant the right of action, judicially declared in Cary v. Curtis, supra, to have been taken away by the latter, now appears as section 3011 of the Revised Statutes. It was in force when the present action was brought, and is as follows: 'Any person who shall have made payment, under protest and in order to obtain possession of merchandise imported for him, to any collector or person acting as collector of any money as duties, when such amount of duties was not, or was not wholly, authorized by law, may maintain an action in the nature of an action at law, which shall be triable by jury, to ascertain the validity of such demand and payment of duties, and to recover back any excess so paid. But no recovery shall be allowed in such action unless a protest and appeal shall have been taken as prescribed in section twenty-nine hundred and thirty-one.' By reference to the fourteenth section of the act of 1864, now section 2931, Rev. St., it will appear that the written protest must be made within 10 days, and the appeal to the secretary of the treasury within 30 days, from the ascertainment and liquidation of the duties by the proper officer. The decision of the secretary on such appeal shall be final and conclusive, unless, within 90 days after it is made, suit is brought; and no suit shall, in the mean time, pending the appeal, be brought unless the decision by the secretary shall be delayed more than 90 days from the date of appeal, if arising upon an entry at any port east of the Rocky mountains. It appears to us quite plain, from the reading of the statute, that no action arises to the claimant, in such cases, until after a decision against him by the secretary of the treasury; and that his suit against the collector is barred unless brought within 90 days after and adverse decision upon his appeal; but with the proviso that if such decision is delayed more than 90 days after the date of his appeal, it is at the claimant's option either to sue pending the appeal, treating the delay as a denial, or to wait until a decision is in fact made, and then sue within 90 days thereafter. It cannot be that he is obliged, in case for any reason a decision at the treasury department is delayed beyond the appointed time, to treat the delay as an adverse decision, and to bring his suit while the matter is still sub judice. There is no language in the act requiring such a conclusion; it is inconsistent with the terms actually employed, and is not founded on any sufficient reason. The right to sue at all, before the final decision of the appeal, is merely inferred from the form of the exception, and in its nature is permissive and not peremptory. The right to sue at any time, within 90 days after the decision on the appeal, is clearly given in the terms which declare that such decision shall not be conclusive if suit is brought thereafter within that period; and the prohibition against suing before such decision is rendered, is express, with the saving only of the right on the part of the claimant to sue before final decision is rendered, if such decision is delayed for more than 90 days after the date of the appeal. But there is nothing which requires him to sue until after such decision has been rendered. The whole purpose of the saving in his favor evidently is, that he shall not be required to wait longer than 90 days after his appeal for an adjudication. There is nothing to forbid his waiting, without suit, as long as he has reason to expect a favorable decision upon his appeal. From this review of the legislation and judicial history of the subject it is apparent that the common-law action recognized as appropriate by the decision in Elliott v. Swartwout, 10 Pet. 137, has been converted into an action based entirely on a different principle,—that of a statutory liability, instead of an implied promise,—which, if not originated by the act of congress, yet is regulated, as to all its incidents, by express statutory provisions. And among them are the conditions which fix the time when the suit may begin, and prescribe the period at the end of which the right to sue shall cease. Congress having undertaken to regulate the whole subject, its legislation is necessarily exclusive. For any inconveniences that may result to outgoing collectors or the representatives of those who have deceased, by the unavoidable delays in deciding appeals in the treasury department, and the absence of a definite period of time beyond which no suit shall be brought, it is for congress alone to apply the needful remedy, It follows that in such cases, of which the present is one, the limitation laws of the state in which the cause of action arose, or in which the suit was brought, do not, under section 721, Rev. St., furnish the rule of decision, and that it was therefore an error in the circuit court to apply, as a bar to the action, the limitation prescribed by the statute of New York. For that error the judgment is accordingly reversed, and the cause remanded with instructions to grant a new trial; and it is so ordered.

107.US.597

1. Section 643 of the Revised Statutes, which provides for removing to the Circuit Court suits or criminal prosecutions commenced in a State court against "any officer appointed under or acting by authority of any revenue law, or any person acting under or by authority of. such officer," applies to marshals of the United States, their deputies and assistants, when engaged in enforcing a revenue law of the United States. 2. Where such a prosecution is duly removed, the jurisdiction of the Circuit Court completely vests, and the subsequent action of the State court, forfeiting the recognizance of the defendant for hii non-appearance there, is corain non judice and void.

Lemuel Davis was indicted for the murder of one Hall in the court of general sessions for the county of Spartanburg, in South Carolina, in July, 1876; and, being in custody, it was ordered by the court that he be enlarged on giving bail for his appearance at the next term of the court, it being required that the bond should contain a condition that it should be forfeited in case the prisoner should be ordered beyond the limits of the state by the proper authority of the army of the United States. He entered into a recognizance accordingly, the other plaintiffs in error being his sureties. The prisoner thereafter presented to the circuit court of the United States for the district of South Carolina a petition, which is set out in the record, as follows: '(United States of America, District of South Carolina, Fourth Circuit.) 'To the Judges of the Circuit Court: 'The petition of Lemuel J. Davis, corporal of Company K, Eighteenth United States infantry, shows: 'That some time in February, 1876, he was detailed to serve as one of a guard of United States soldiers to aid Deputy Marshal James Jarrett in making the arrest of one Brandy Hall, under a warrant issued by a United States commissioner for violation of internal-revenue laws as a distiller. 'That said guard of United States soldiers consisted of two men under the command of First Lieut. W. A. Miller, Eighteenth United States infantry. That said guard, under command of said Lieut. Miller, proceeded with Deputy Marshal James Jarrett to the house of said Brandy Hall, for the purpose of arresting him. That for the purpose of making the arrest, the house of said Hall was surrounded. This petitioner was stationed at the back door of the house for the purpose of guarding the same, and preventing the escape of said Hall. That the deputy marshal, Jarrett, went to the front of the house for the purpose of effecting an entrance and arresting said Hall. That at the time he did so, and while your petitioner was guarding the back door, said Hall made his escape through a hole in the side of the house near where petitioner was standing, sprang past him, frightening his horse and accidentally discharging his piece. 'That by the discharge of his said piece the said Hall was shot and mortally wounded, and subsequently died of said wound. Your petitioner shows that at the time of said accident he was in the discharge of his duty, and that said shooting of said Hall was purely accidental, and your petitioner is in no way responsible therefor. Your petitioner shows that he has been arrested and bound over for trial in the circuit court of the state of South Carolina for Spartanburg county, for the murder of said Hall. 'That an indictment by the grand jury of that county for the murder was found at the August term of said court against your petitioner, and your petitioner was put upon his trial thereon; that the jury before whom he was tried found your petitioner guilty of manslaughter; that the court thereupon set aside said verdict and granted a new trial. Your petitioner shows that he is illegally and unlawfully held for trial under the order of said court, and prays your honor to grant a writ to remove said cause for trial in the circuit courts of the United States for the district of South Carolina, now being held at Columbia, in said state. [Signed] 'LEMUEL J. DAVIS. 'Personally appears before me Corporal Lemuel J. Davis, who, being duly sworn, deposes and says the above petition is true of his own knowledge. 'LEMUEL J. DAVIS. 'Sworn and subscribed before me the second day of December, A. D. 1876. 'J. E. HAGOOD, '[Seal of Court.] C. C. C. U. S., Dist. of S. C. '(United States of America, District of South Carolina, Fourth circuit.) 'Ex parte LEMUEL J. DAVIS, Eighteenth U. S. Infantry. 'Petition for habeas corpus. 'I certify that I represented the petitioner upon his trial at Spartanburg; that I have examined the proceedings against him; and have carefully inquired into all the matters set forth in the petition of the said Davis, and believe them to be true. WM. E. EARLE.' On the hearing of this petition, December 4, 1876, it was ordered by the court that a writ of habeas corpus cum causa do issue, to be served according to law on the clerk of the circuit court for Spartanburg county, and that the marshal do take said Corporal Lemuel J. Davis into his custody, to be dealt with according to law. On March 12, 1877, an order was made by the circuit judge for the county of Spartanburg in the court of general sessions, reciting that the said Lemuel J. Davis had failed to answer when called according to his recognizance, and directing process against him and his sureties to appear and show cause why judgment should not be confirmed against them, and their recognizance adjudged to be forfeited. The plaintiffs in error accordingly appeared and answered the rule, alleging the removal of the cause into the circuit court of the United States by the proceedings recited, by reason whereof the said Lemuel Davis was not bound to appear for trial in the court of general sessions for the county of Spartanburg, and that consequently there had been no breach of the condition of the recognizance. Upon this return to the rule to show cause judgment was rendered against the plaintiffs in error, which, on appeal to the supreme court of the state, was affirmed. To reverse that judgment the present writ of error is prosecuted. The learned attorney general of the state of South Carolina, who appears bere on the part of the state, very properly waives all questions arising in this case which are covered by the decision of this court in Tennessee v. Davis, 100 U. S. 257. He seeks to distinguish the present case, however, from that, upon its circumstances, and claims that Davis was not entitled, by virtue of the capacity in which he was acting, to the benefit of section 643, Rev. St., and to that end maintains the proposition that, as that section applies only to officers appointed under or acting by authority of any revenue law of the United States, or any person acting under the authority of such officers, it cannot be extended to embrace the case of United States marshals, or their deputies or assistants, even when they are engaged in the service of process issued for the arrest of parties accused of violation of the revenue laws of the United States. In our opinion the distinction cannot be maintained. A marshal or deputy marshal of the United States is, it is true, not an officer appointed under a revenue law; but when engaged officially in lawful attempts to enforce a revenue law, by the arrest of persons accused of offenses against it, he is an officer acting under the authority of that law; for it is that law under which is issued the process, which constitutes his authority for his official action. There is, indeed, the general law, prescribing the nature of his duties, which requires him faithfully to execute all lawful process placed in his hands for that purpose; but when process, issued under a particular law, is lawfully issued to him for service, in executing it he is acting under the authority of that law, without which the process would not be valid. It is that law which he would be compelled to rely on as his justification if he was sued as a trespasser for executing the process issued for its enforcement. And the protection which the law thus furnishes to the marshal and his deputy, also shields all who lawfully assist him in the performance of his official duty. It is not questioned that Davis was acting in that capacity. It is true, he was a non-commissioned officer in the army, detailed as a guard in aid of the marshal, and acting as one of his posse comitatus; but this was before such service became unlawful by the passage of the fifteenth section of the army appropriation act of June 18, 1878, (Supp. Rev. St. 361; 20 St. at Large. 145.) The prosecution against Davis was removed into the circuit court in strict compliance with the statute. His petition set out the necessary facts showing that the homicide which was charged against him as a crime took place while he was in discharge of his official duty; it was verified, and certified as required by law. The writ of habeas corpus cum causa, which was issued upon it, was the writ prescribed by the act of congress in cases of that description, a duplicate of which it requires shall be delivered to the clerk of the state court; and thereupon the statute declares that it shall be the duty of the state court to stay all further proceedings in the cause, and the prosecution, upon delivery of such process, shall be held to be removed to the circuit court, and any further proceedings, trial, or judgment therein in the state court shall be void. When, by virtue of the writ of habeas corpus, the prisoner was taken into the custody of the marshal, the jurisdiction of the circuit court of the United States of his person, and of the indictment against him, was completely vested, and that of the state courts ceased altogether. The recognizance was an incident and followed the principal case. The obligation to appear was transferred with the cause, and he was no longer bound to answer in the court of original jurisdiction. It would have been unlawful for his bail to have surrendered him to that tribunal. They were consequently discharged from the obligation of the recognizance, so far as it required them to do so, or to answer for the default. There was, consequently, no breach of the bail-bond in not appearing in the state court, and all proceedings to forfeit it and render judgment upon it against the sureties were coram non judice and void. The right to proceed upon it at all against him or them passed from the state court with the transfer of its jurisdiction over the person of the prisoner and the indictment against him. The judgment of the supreme court of South Carolina is accordingly reversed, and the cause is remanded, with instructions to enter a judgment reversing the judgment of the circuit court for the county of Spartanburg, and directing that court to dismiss the proceeding upon the recognizance for want of jurisdiction. It is accordingly so ordered.

107.US.402

A. was surveyor of customs from June 13,1872, to May, 1876, at Troy, N. Y., which was a port of delivery, but not of entry, in the collection district of the city of New York. At various times during the period from June 13, 1872, to June 22, 1874, there was a surveyor of customs at the port of New York, which was a port of entry, and there were surveyors of customs at two other ports in that district, which were ports of delivery and not ports of entry. In accordance with the uniform practice of the Treasury Department, under sect. 1 of the act of March 2, 1867, c. 188, repealed by sect. 2 of the act of June 22, 1874, c. 391, the Secretary of the Treasury distributed to the collector, naval officer, and surveyor at the port of New York, as such officers, and not as informers or seizing officers, one-fourth part of the proceeds of the fines, penalties, and forfeitures incurred at the port of New York between June 13, 1872, and June 22, 1874. A. made no question in regard to this practice until March, 1874, and when informed, in June of that year, that the department adhered to its construction of the act, he made no further complaint until March, 1877. He sued the United States in the Court of Claims in May, 1877, claiming that under said first section he was entitled to share in said one-fourth equally with the collector and the naval officer at the port of New York, and all the surveyors in the district. The court rejected the claim. Held, that the judgment was not erroneous.

This case comes before this court on an appeal by the claimant, Emanuel Hahn, from the judgment of the court of claims finding in favor of the United States, and dismissing the petition of the claimant. The following were the material facts found by that court: '(1) On the thirteenth of June, 1872, the claimant was appointed surveyor of customs at the port of Troy, New York, and continued to act as such officer until May 28, 1876. (2) During that period, from June 13, 1872, to June 22, 1874, Alonzo B. Cornell was surveyor of customs at the port of New York to March 31, 1873, and George H. Sharpe from March 31, 1873, to June 22, 1874; Isaac N. Keeler was surveyor of customs at the port of Albany; and from April 28, 1874, Frank P. Norton was surveyor of customs at the port of Port Jefferson; all in the collection district of the city of New York. (3) There was collected and paid into the treasury of the United States, from the proceeds of fines, penalties, and forfeitures incurred at the port of New York, between June 13, 1872, and April 28, 1874, the sum of $839,819.40, and more, and between April 28 and June 22, 1874, $14,604.11, and more, after making the deductions required by law; of which sums, in the distribution made by the secretary of the treasury, one-fourth part was paid to the collector, naval officer, and surveyor at the port of New York, as such officers, and not as informers or seizing officers, and none thereof was paid to the claimant, which distribution was made in accordance with the uniform practice of the treasury department, under the law of March 2, 1867, c. 188, (14 St. 546.) (4) During the same period, between June 13, 1872, and June 22, 1874, there was paid into the treasury, from fines incurred at the port of Troy, aforesaid, on persons for not surrendering licenses of canal-boats, as required by law, the sum of $1,000, of which, in the distribution thereof by the secretary of the treasury, one-fourth was paid to the claimant as informer or seizing officer, and no other share was allowed to him.' On these facts the claimant contends that under the provisions of section 1 of the act of March 2, 1867, c. 188, (14 St. at Large, 546,) he was entitled, for the period from June 13, 1872, to April 28, 1874, to share equally with the collector, the naval officer, and two other surveyors in the collection district of the city of New York in the one-fourth part of the said sum of $839,819.40, and thus to recover one-twentienth part of said sum, and for the period from April 28, 1874, to June 22, 1874, to share equally with the collector, the naval officer, and three other surveyors in said collection district, in one-fourth part of said sum of $14,604.11, and thus to recover one twenty-fourth part of said sum. The statute in question was in these words: 'That from the proceeds of fines, penalties, and forfeitures incurred under the provisions of the laws relating to the customs, there shall be deducted such charges and expenses as are by law in each case authorized to be deducted; and in addition, in the case of the forfeiture of imported merchandise of a greater value than $500 on which duties have not been paid, or in case of a release thereof, upon payment of its appraised value, or of any fine or composition in money, there shall also be deducted an amount equivalent to the duties in coin upon such merchandise, (including the additional duties, if any,) which shall be credited in the accounts of the collector as duties received, and the residue of the proceeds aforesaid shall be paid into the treasury of the United States, and distributed, under the direction of the secretary of the treasury, in the manner following, to-wit: one-half to the United States, one-fourth to the person giving the information which has led to such seizure, or to the recovery of the fine or penalty, and if there be no informer other than the collector, naval officer, or surveyor, then to the officer making the seizure; and the remaining one-fourth to be equally divided between the collector, naval officer, and surveyor, or such of them as are appointed for the district in which the seizure has been made, or the fine or penalty incurred, or, if there be only a collector, then to such collector.' The findings in this case show (1) that the moneys claimed were the proceeds of fines, penalties, and forfeitures incurred at the port of New York; (2) that the claimant was not the surveyor at the port, but was a surveyor at another port in the same collection district; (3) that the secretary of the treasury actually distributed one-fourth part of the distributable sums to the collector, naval officer, and surveyor at the port of New York, as such officers, and not as informers or seizing officers, and paid no part to the claimant; and (4) that such distribution was made in accordance with the uniform practice of the treasury department, under the said act of 1867. From these findings it is to be understood that it was the uniform practice of the treasury department, under the act of 1867, to distribute one-fourth part of the proceeds of fines, penalties, and forfeitures incurred at the port of New York (such as the proceeds in this case were) to the collector, naval officer, and surveyor at that port as such collector, naval officer, and surveyor; such one-fourth part not including any part of any share which under said statute goes to the informer or to the officer making the seizure. The demand made by the claimant in this case in his petition has no reference to the one-fourth part which the statute awards to the informer or the seizing officer. The controversy arises over the meaning of these words in the act of 1867: 'The remaining one-fourth to be equally divided between the collector, naval officer, and surveyor, or such of them as are appointed for the district in which the seizure has been made, or the fine or penalty incurred.' It is said in substance, in the opinion of the court of claims in this case, reported in 14 Ct. of Claims R. 305, that the secretary of the treasury, in the practice spoken of, proceeded on the view that the port of New York was the only port of entry in said collection district; that the ports of Albany, Troy, and Port Jefferson, though ports in said collection district and ports of delivery, were not ports of entry; that the statute spoke only of 'the collector, naval officer, and surveyor;' that the words 'or such of them as are appointed for the district in which the seizure has been made, or the fine or penalty incurred,' could not enlarge the meaning of the word 'surveyor' to the plural sense, because it could not so enlarge the meaning of the word 'collector' or the word 'naval officer,' as there was but one of each of them in any district; and that the surveyor intended, in reference to cases like the present, was the surveyor of the port where the fines, penalties, and forfeitures were incurred. The court observed that, as the provisions of the act of 1867 awarding shares of forfeitures had been repealed,—by section 2 of the act of June 22, 1874, c. 391, (18 St. at Large, 186,)—and as congress had not interfered with such construction by the secretary of the treasury while the act was in force, and as the claimant had raised no question in regard to such construction until March, 1874, and had been informed by the treasury department in June, 1874, that it adhered to such construction, and had not complained again until March, 1877, but had permitted moneys to be distributed under such view until he brought this suit in May, 1877, (facts which appear in the findings of the court below,) the construction adopted had become the one which must govern all distributions under the act. The court added that such construction did not appear to it unreasonable, and might well have been reached in the exercise of a sound judgment; and that, regarding the statute as ambiguous, all the circumstances of the case were such as to justify the application of the principle of interpretation sanctioned by this court in U. S. v. Pugh, 99 U. S. 265, that, 'in the case of a doubtful and ambiguous law, the contemporaneous construction of those who have been called upon to carry it into effect is entitled to great respect, (Edwards' Lessee v. Darby, 12 Wheat. 210,)' and where this court refused to interfere with such construction after it had been acted upon for a long time. See, also, U. S. v. Alexander, 12 Wall. 177; Peabody v. Stark, 16 Wall. 240; Smythe v. Fiske, 23 Wall. 382; U. S. v. Moore, 95 U. S. 768. We are satisfied with the decision of the court of claims, and with the grounds above stated as assigned by it therefor, and its judgment is affirmed.

106.US.583

Section 4189 of the Code of Alabama, prohibiting a white person and a negro from living with each other in adultery or fornication, is not in conflict with the Constitution of the United States, although it prescribes penalties more severe than those to which the parties would be subject, were they of the same race and color.

The counsel of the plaintiff in error compares sections 4184 and 4189 of the Code of Alabama, and assuming that the latter relates to the same offense as the former, and prescribes a greater punishment for it, because one of the parties is a negro, or of negro descent, claims that a discrimination is made against the colored person in the punishment designated, which conflicts with the clause of the fourteenth amendment prohibiting a state from denying to any person within its jurisdiction the equal protection of the laws. The counsel is undoubtedly correct in his view of the purpose of the clause of the amendment in question, that it was to prevent hostile and discriminating state legislation against any person or class of persons. Equality of protection under the laws implies not only accessibility by each one, whatever his race, on the same terms with others to the courts of the country for the security of his person and property, but that in the administration of criminal justice he shall not be subjected, for the same offense, to any greater or different punishment. Such was the view of congress in the re-enactment of the civil-rights act, after the adoption of the amendment. That act, after providing that all persons within the jurisdiction of the United States shall have the same right, in every state and territory, to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, declares that they shall be subject 'to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.' 16 St. c. 114, § 16. The defect in the argument of counsel consists in his assumption that any discrimination is made by the laws of Alabama in the punishment provided for the offense for which the plaintiff in error was indicted when committed by a person of the African race and when committed by a white person. The two sections of the Code cited are entirely consistent. The one prescribes, generally, a punishment for an offense committed between persons of different sexes; the other prescribes a punishment for an offense which can only be committed where the two sexes are of different races. There is in neither section any discrimination against either race. Section 4184 equally includes the offense when the persons of the two sexes are both white and when they are both black. Section 4189 applies the same punishment to both offenders, the white and the black. Indeed, the offense against which this latter section is aimed cannot be committed without involving the persons of both races in the same punishment. Whatever discrimination is made in the punishment prescribed in the two sections is directed against the offense designated and not against the person of any particular color or race. The punishment of each offending person, whether white or black, is the same. Judgment affirmed.

107.US.126

for which the United States was in no wise responsible -to comply with the terms upon which the government had consented to be sued in the Court of Claims, is his misfortune, and cannot have the effect of enlarging the time fixed by the statute of limitation. His remedy, if the claim be a valid one, is to apply to the legislative department of the government. The courts cannot, in view of the language of the statute, exclude from computation, on the issue of limitation, the time intervening between the accruing of the claim in 1865 and the promulgation of the amnesty proclamation. Judgment affirmed. as follows: "That from and after September 30, 1873, there never was any register at the land-office at Pembina; that there were no legal sales of land or receipts of moneys at said land-office for any purpose during all the time from said 30th of September, to the end of the time that said Potter held the office of receiver of said land-office." The parties waived a jury, and submitted the issues of fact as well as of law to the court. Upon the trial, the United States offered in evidence certified copies of the accounts rendered by Potter for four quarters, to wit, the quarters ending respectively Sept. 30 and Dec. 31, 1873, and March 31 and June 30,1874, which showed a balance against him of $8,564.77, which he had not accounted for or paid over. By way of defence testimony was offered which, as stated by the bill of exceptions, proved that one Brashear, from the summer of 1871 until the expiration of the term of office of Potter, was register of the land-office at Pembina; that from and after Sept. 23, 1873, Brashear was not present at said land-office, but on the day last named "left Pembina and said land-office, and never returned, but continued to hold said office of register during Potter's term of office," which expired in June, 1874; "that before leaving the office he signed a large number of printed blanks, covering all the various business of the register of said land-office, and left them with one William R. Goodfellow, who was a clerk in the custom-house in said Pembina, and had nothing to do with said land-office, except that he was authorized by said Brashear to act for him in his absence; and that all the business of said land-office, as far as the said register was concerned, was done by said Goodfellow with the blanks so signed by said register as aforesaid." The bill of exceptions further shows that testimony was offered which proved "that the said receiver, George F. Potter, left said Pembina and said land-office on the 8th or 9th of April, 1874, and did not return until the last of June or the beginning of July, 1874, and that no one was in charge of said land-office while said receiver was gone except said Goodfellow; that on the return of said Potter he received no money from said Goodfellow on account of said office, and that he did

The answer of the defendants does not allege that the moneys for which the court rendered judgment against them were received by Potter after September 23, 1873, and during the absence of Brashear, the register. Neither does the bill of exceptions profess to state all the evidence in regard to the absence of Brashear and Potter from their offices respectively. Passing by these defects in the record, we shall consider the question presented by the exception of defendants. Their first contention is that they are not responsible for any moneys received by Potter, the receiver, during the time that Brashear, the register, was absent from the land-office. The ground of this contention is as follows: The record shows that during Potter's term of office all sales of land were either by pre-emption or commutation of homesteads. The argument of plaintiffs in error applies only to pre-emption sales. Section 2259 of the Revised Statutes of the United States prescribes what persons are entitled to pre-emption and upon what terms the right of pre-emption is accorded to the settler upon the public lands. Section 2263 declares that 'prior to any entries being made under and by virtue of the provisions of section 2259, proof of the settlement and improvements thereby required shall be made to the satisfaction of the register and receiver of the land district in which such lands lie,' etc. The plaintiff in error contends that these officers constitute a joint tribunal, and that there can be no business done without the presence and action of both. And as Brashear, the register, was absent from September 23, 1873, to the close of Potter's term, there could be no legal pre-emptions during that time, and that all moneys paid for pre-emptions before the conditions prescribed by law had been complied with, were not payments made to the United States, but unauthorized and unofficial payments made to the receiver, for which his sureties were not liable. In our judgment this contention has no ground to stand on. There is no expression in the statute which requires the register and receiver to sit at the same time and concurrently pass upon the sufficiency of the proof of settlement and improvement by pre-emptors. If the proof is submitted to the register on one day and he is satisfied, there is nothing in the statute which implies that it may not be lawfully submitted, at some subsequent day, to the receiver for his approval. The oath of the pre-emptor, which is part of the proof required by law, may be taken before either the register or receiver. Section 2262; Lytle v. State, 9 How. 314. They are nowhere required to meet and jointly consider the sufficiency of the proof offered. If both are satisfied, that is all the law requires. It does not appear in the record that the proof by pre-emptors of the settlement and improvement of the lands for which money was received by Potter during the absence of Brashear had not been made to his satisfaction before he left the land district. If such proof had been made to the satisfaction of Brashear, all that was necessary to complete the right of the pre-emptor was the approval of Potter, which was effectually expressed by his receipt of the money. What the law requires is that the conditions requisite to a pre-emption entry should be shown to have been performed to the satisfaction of both officers. As it does not appear in the record that the proof was not made to the satisfaction of both officers, it must be presumed that the money received by Potter in the absence of Brashear was justly due the United States, and was received by him in his official capacity. We find nothing either in the cases or statutes cited by counsel for plaintiffs in error which tends to establish a different construction of the law. But if it be conceded that the statute required the register and receiver to pass concurrently upon the proof of the settlement and improvement before lands could be entered by a pre-emption, we are, nevertheless, of opinion that the plaintiffs in error are responsible for the moneys received by Potter. The moneys were received by him as public moneys, for he charged himself with them in his accounts with the government. They were paid as public moneys by pre-emptors as a consideration for title to portions of the public domain. If any objection could be raised to the transfer of title to the pre-emptors, it could be made by the United States only. But the United States makes no objection. On the contrary, all objection is waived by the bringing of this suit by the government to recover the moneys paid by the pre-emptors for their lands. These moneys are, therefore, public moneys. They belong neither to Potter not the pre-emptors, and must, consequently, be the property of the United States. It was, therefore, the duty of Potter, as receiver, to account for and pay to the United States the moneys so received, and it does not lie in the mouths of the sureties on his official bond to raise an objection to the payment of the moneys to him which he could not raise, and which is not raised by the pre-emptors or by the United States. Their responsibility for the money so received is therefore clear. In support of this view the case of King v. U. S. 99 U. S. 229, is in point. That was a suit brought against one Chase and his sureties, on the bond given by Chase as collector of internal revenue, to recover taxes collected by him, and never accounted for or paid over. The facts were that on June 1, 1868, the Toledo, Wabash & Western Railroad Company was indebted to the United States in a large sum for the 5 per cent. tax for interest paid on its first-mortgage bonds. The tax, was, on the day named, paid to Chase by the treasurer of the railroad company. At the time of the payment the treasurer delivered to Chase the monthly returns of the taxes so due, in the form prescribed by law, signed by him as treasurer, but not sworn to, and which had never been filed with or delivered to the assessor. Chase delivered to the assessor all these returns, except those for August, September, and October, 1867, which were never delivered, nor did Chase at any time make any mention of them in his report to the government, and he retained the amount $24,923—paid by the railroad company as the tax upon the returns for the three months just mentioned. Five years after the receipt by Chase of this money, and when he had become insolvent, suit was brought on his official bond to recover the money so appropriated by him. The defense set up by his sureties was that, as the money was not received by Chase on any return made to the assessor, or on any assessment of said taxes made by the assessor or by the commissioner of internal revenue, and as the return delivered to Chase by the treasurer of the railroad company was not verified by oath, it was a voluntary deposit of money in his hands by the treasurer of the railroad company, and was not received by him in his official capacity; that it was not his duty to receive it for the government; and the sureties were not liable, because its receipt was an unofficial act. But the court held that the payment of the taxes to the collector was a good payment to him in his official capacity; that the money so paid was the money of the United States; and that the sureties on his bond were responsible for it. This case is so apposite to the question in hand, and so conclusive, as to require no further remark. It is next contended by the plaintiffs in error that they are not liable for the $1,400 received during the absence of Potter, extending from April 9 to June 30, 1874, by the person whom he had left in charge of his office, because that person had no authority to perform any of the duties of receiver. There are two sufficient replies to this contention: First, no such defense is set up in the answer or amended answer of the plaintiffs in error. They cannot complain that the circuit court did not give effect to a defense which they did not think it worth while to plead. Second, it is not made to appear by the bill of exceptions that any money was paid to Goodfellow, the person left by Potter in charge of his office, which was not due the United States from pre-emption entries made by persons who had proved the settlement and improvement of the land to the satisfaction of both the receiver and register. If, therefore, this contention of the plaintiffs in error is sustained, we should, in effect, decide that the sureties of the receiver would not be answerable for public moneys paid, with his concurrence and assent, to his assistant or cashier, but only for money actually paid into the hands of the receiver himself. It requires no argument to expose the fallacy of such a conclusion. If a public officer sees fit to allow the money of the government to be paid during his absence from his office into the hands of his agent or servant, it is a good payment to him, and the risk is with him and his sureties, and not with the government. We find no error in the record. The judgment of the circuit court is, therefore, affirmed.

108.US.212

Where, upon the removal of a cause from a State court, the copy of the record is not filed within the time fixed by statute, it is within the legal discretion of the federal court to remand the cause, and the order remanding it for that reason should not be disturbed unless it clearly appears that the discretion with which the court is invested has been improperly exercised. If, upon the first removal, the federal court declines to proceed and remands the cause because of the failure to file the copy of the record within due time, the same partyis not entitled, under existing laws, to file in the State court a second petition for removal upon the same ground.

In Removal Cases, 100 U. S. 474, the court had occasion to construe the act of March 3, 1875, determining the jurisdiction of circuit courts of the United States and regulating the removal of causes from state courts. The court there said, speaking by the chief justice: 'While the act of congress requires security that the transcript shall be filed on the first day, it nowhere appears that the circuit court is to be deprived of its jurisdiction, if by accident the party is delayed until a later day of the term. If the circuit court, for good cause shown, accepts the transfer after the day and during the term, its jurisdiction will, as a general rule, be complete and the removal properly effected.' In reference to this language, it was said in Railroad Co. v. Koontz, 104 U. S. 16: 'This was as far as it was necessary to go in that case, and in entering, as we did then, on the construction of the act of 1875, it was deemed advisable to confine our decision to the facts we then had before us.' In the latter case, it was further determined that 'if the petitioning party is kept by his adversary, and against his will, in the state court, and forced to a trial there on the merits, he may, after having obtained in the regular course of procedure a reversal of the judgment and an order for the allowance of the removal, enter the cause in the circuit court, notwithstanding the term of that court has gone by during which, under other circumstances, the record should have been entered.' In Nat. Steam-ship Co. v. Tugman, at the present term, [1 SUP. CT. REP. 58,] it was ruled that upon the filing of the petition for removal, accompanied by a proper bond,—the suit being removable under the statute,—the jurisdiction of the federal court immediately attached, in advance of the filing of a copy of the record; and whether that court should retain jurisdiction, or dismiss or remand the action because of the failure to file such copy, was for it, not for the state court, to determine. These cases abundantly sustain the proposition that the failure of the defendant to file the copy on or before the first day of the succeeding session of the federal court, does not deprive that court of jurisdiction to proceed in the action, and that whether it should do so or not upon the filing of the copy, is for it to determine. In this case it was undoubtedly within the sound legal discretion of the circuit court to proceed as if the copy had been filed within the time prescribed by statute. But clearly it had a like discretion to determine whether the reasons given for the failure to comply in that respect with the law were sufficient. We do not say that in the exercise of that discretion the court may not commit an error which would bring its action under the reviewing power of this court. But since the question whether the cause should be remanded for failure to file the necessary copy in due time is one of law and fact, its determination to remand, for such a reason, should not be disturbed unless it clearly appears that the discretion with which the court is invested has been improperly exercised. We perceive no ground whatever to question the correctness of the order of May 28, 1879, or to conclude that there was any abuse by the court of its discretion. The only reason given for the failure to file the transcript within proper time was inadvertence upon the part of counsel; in other words, the filing was overlooked. It is scarcely necessary to say that this did not constitute a sufficient legal reason for not complying with the statute. At any rate, the refusal of the court to accept it as satisfactory cannot be deemed erroneous. But it is contended that the order of December 27, 1879, remanding the cause, was erroneous, because the copy, upon the second petition for removal, was filed in the federal court within due time, after that petition, with the accompanying bond, was presented in the state court. Assuming that the second petition for removal was filed before or at the term at which the cause could have been tried in the state court, we are of opinion that a party is not entitled, under existing laws, to file a second petition for the removal upon the same grounds, where, upon the first removal by the same party, the federal court declined to proceed and remanded the suit, because of his failure to file the required copy within the time fixed by the statute. When the circuit court first remanded the cause,—the order to that effect not being superseded,—the state court was reinvested with jurisdiction, which could not be defeated by another removal upon the same grounds, and by the same party. A different construction of the statute, it can be readily seen, might work injurious delays in the preparation and trial of causes. Judgment affirmed.

106.US.464

Whatever was determined here on a writ of error cannot be re-examined upon a subsequent writ brought in the same suit.

When this case was here on a former writ of error it was decided that Keith, the collector, was bound in law to receive the genuine notes of the Bank of Tennessee, issued after May 6, 186§, in payment of taxes due the state of Tennessee, unless he showed in defense that the notes tendered were issued for the purpose of aiding the rebellion. The affirmative of this issue was put on the collector. Keith v. Clark, 97 U. S. 454. That question is no longer open in this case, for the reason that it has long been settled that whatever has been decided here on one writ of error cannot be re-examined on a subsequent writ brought in the same suit. This rule was distinctly stated in Sup'rs v. Kennicott, 94 U. S. 499, where numerous authorities are cited, beginning as early as Himely v. Rose, 3 Cranch, 314. On the trial of an issue framed to meet the case as it was sent back from here for further proceedings, the court instructed the jury as follows: 'If a part of the Torbett issue (that after May 6, 1861) was made and signed by the proper officers of the bank to aid the rebellion, and the other part of said issue was made, signed, and issued for the purpose of doing a legitimate banking business, and you cannot say from the evidence in the case that the notes here sued on were issued in aid of the rebellion, or were signed and issued for legitimate banking business, then you should find for the plaintiff. In other words, the law presumes that the notes here sued upon were issued for a lawful purpose, and the burden of proof is upon the defendant to show otherwise before this defense can be sustained.' The ruling of the supreme court of Tennessee sustaining this instruction is the only error assigned on the record brought up with the present writ. As the instruction was in exact conformity with our former decision, which we cannot re-examine in the present case, the judgment is affirmed.

109.US.573

In a suit to set aside a deed of trust executed to secure the payment of a note signed by husband and wife, and the acknowledgment of which was certified as required by law, it was in proof that the wife signed the note and the deed, having an opportunity to read both before signing them ; she was before an officer competent to take her acknowledgment, and he came into her presence, at tbe'request of the husband, to take it ; and she knew, or could have ascertained, while in the presence of the officer, as well to what property the deed referred as the object of its execution: Held, that the certificate must stand against a mere conflict of evidence as to whether she willingly signed, sealed, and delivered the deed, or had its contents explained to her by the officer, or was examined privily and apart from her husband ; and that even if it be only prima facie evidence of the facts therein stated, it cannot be,i mpeached, in respect to those facts, except upon proof which clearly and fully shows it to be false or fraudulent.

It is provided by the Revised Statutes of the United States, relating to the District of Columbia, that 'when any married woman shall be a party executing a deed for the conveyance of real estate or interest therein, and shall only be relinquishing her right of dower, or when she shall be a party with her husband to any deed, it shall be the duty of the officer authorized to take acknowledgments, before whom she may appear, to examine her privily and apart from her husband, and to explain to her the deed fully;' further, 'if upon such privy examination and explanation, she shall acknowledge the deed to be her act and deed, and shall declare that she had willingly signed, sealed, and delivered the same, and that she wished not to retract it, the officer shall certify such examination, acknowledgment, and declaration, by a certificate annexed to the deed, and under his hand and seal,' to the effect indicated in the form prescribed by the statute. Rev. St. D. C. § 450. It is also provided that 'when a privy examination, acknowledgment, and declaration of a married woman is taken and certified and delivered to the recorder of deeds for record, in accordance with the provisions of this [the fourteenth] chapter, the deed shall be as effectual in law as if she had been an unmarried woman; but no covenant contained in this deed shall in any manner operate upon her or her heirs, further than to convey effectually her right of dower or other interest in the real estate which she may have at the date of the deed.' Id. § 452. These statutory provisions being in force, there was placed upon record in the proper office in the District of Columbia, on the seventeenth day of November, 1875, a deed of trust purporting to have been executed by Mark Young and Virginia Young, his wife, and to have been, on the same day, acknowledged before B. W. Ferguson, a justice of the peace in and for the District of Columbia. The certificate of that officer, under his hand and seal, shows that the grantors were personally known to him to be the persons who executed the deed; that they personally appeared before him, in this district, 'and acknowledged the same to be their act and deed; and the said Virginia Young, wife of said Mark Young, being by me [him] examined privily and apart from her husband, and having the deed aforesaid fully explained to her, acknowledged the same to be her act and deed, and declared that she had willingly signed, sealed, and delivered the same, and that she wished not to retract it.' This deed of trust conveyed certain real estate in the city of Washington, the property of Mrs. Young, to the appellees, Duvall and Holtzman, in trust to secure the payment of a note executed by the grantors, whereby they promised to pay to the order of John Little, two years after date, at the National Metropolitan Bank, the sum of $8,000, with interest at the rate of 10 per cent. until paid. Neither Little nor the present holder of the note had any knowledge of the circumstances attending the execution of the deed. Default having occurred in the payment of the debt so secured, the trustees advertised the property for sale at public auction. Thereupon Mrs. Young instituted this suit for the purpose of preventing such sale and to obtain a decree declaring the deed of trust fraudulent and void, and requiring it to be surrendered for cancellation. The bill sets forth several grounds upon which relief to that extent is asked, but those only deserve serious consideration which are embraced by averments, to the following effect: That the contents of the deed were never explained to her; that she signed it because she was required, ordered, and commanded to do so by her husband and a person who was with him; that its contents were never known or explained to her by the officer; that so far from her having been examined, in reference to the deed, privily and apart from her husband, the latter remained in the presence of herself and the officer on the occasion when it is claimed she signed, acknowledged, and delivered it. It was in proof that Mrs. Young signed the note and the deed, having an opportunity to read the papers before signing them; she was before an officer competent under the law to take her acknowledgment, and he came into her presence for the purpose of receiving it; he so came at the request of the husband, who expected, by means of the executed deed of trust, to secure a loan from John Little of the amount specified in the note; and she knew, or could readily have ascertained while in the presence of the officer, as well to what property the deed referred as the object of its execution. There is, however, a conflict in the evidence as to whether she willingly signed, sealed, and delivered the deed, or had its contents fully or at all explained to her by the officer, or was examined privily and apart from her husband. It is not necessary to enter upon a review of the adjudged cases bearing upon the general question of the effect to be given to the certificate of an officer taking an acknowledgment of a married woman to a conveyance of real estate; for if it be assumed for the purposes of this case that it is only prima facie evidence of the facts stated in it, we are of opinion that the integrity of the certificate before us has not been successfully impeached. The certificate of the officer states every fact essential under the statute to make the deed, upon its being delivered for record, as effectual in law as if Mrs. Young was an unmarried woman. The duties of that officer were plainly defined by statute. It was incumbent upon him to explain the deed fully to the wife, and to ascertain from her whether she willingly signed, sealed, and delivered the same, and wished not to retract it. The responsibility was upon him to guard her against coercion or undue influence upon the part of the husband, in respect of the execution and delivery of the deed. To that end he was required to examine her privily and apart from the husband. These facts were to be manifested by a certificate under his hand and seal. Of necessity, arising out of considerations of public policy, his certificate must, under the circumstances disclosed in this case, be regarded as an ascertainment, in the mode prescribed by law, of the facts essential to his authority to make it; and if, under such circumstances, it can be contradicted, to the injury of those who in good faith have acted upon it,—upon which question we express no opinion,—the proof to that end must be of such a character as will clearly and fully show the certificate to be false or fraudulent. Ins. Co. v. Nelson, 103 U. S. 544, 547. The mischiefs that would ensue from a different rule could not well be overstated. The cases of hardship upon married women that might occur under the operation of such a rule are of less consequence than the general insecurity in the titles to real estate which would inevitably follow from one less rigorous. It is sufficient for the disposition of this case to say that, even upon the assumption that the certificate is only prima facie evidence of the facts stated in it, the proof is not of that clear, complete, and satisfactory character which must be required to impeach the official statements of the officer who certified Mrs. Young's acknowledgment of the deed in question. The decree must, therefore, be affirmed. It is so ordered.

109.US.513

1. The power to take private property for public uses, in 'the exercise of the right of eminent domain, is an incident of sovereignty, belonging to every independent government, and requiring no constitutional recognition, and it exists in the government of the United States. Boom v..Patterson, 98 U. S. 406, cited and approved. 2. The liability to make compensation 'for private property taken for public uses is a constitutional limitation of the right -of eminent domain. As this limitation forms no part of the power to take private property for public uses, the government of the United States may delegate to a tribunal created under the laws of a State, the power to fix and determine the amount of compensation to be paid by the United States for private property taken by them in the exercise of their right of eminent domain ; or it may, if it pleases, create a special tribunal for that purpose. On this point Kohl v. United ,Sates,9 1 U. S. 367, cited and approved.

By an act of congress, passed on the eighth of August, 1846, certain lands were ceded to Wisconsin to aid in improving the navigation of Fox and Wisconsin rivers, in that state, and in constructing a canal to unite the rivers, and thus form a connection between the waters of Green bay, in Lake Michigan, and the waters of the Mississippi. St. 1846, c. 170. The state accepted the cession of the lands, and in August, 1848, created a board of public works, under whose superintendence it placed the construction of the improvement contemplated. The work, however, was not done under that board; the means furnished proved inadequate. Various other attempts, therefore, were made by different companies created by the state to carry out the improvement, and in furtherance of it congress ceded additional lands; but none of these attempts proved successful. The improvement was only partially made. In 1866, by various transfers, which it is unnecessary to detail, the lands ceded by congress, and the works of improvement, including the locks, dams, canals, and other structures connected with it, became the property of a corporation known as the Green Bay & Mississippi Canal Company. In July, 1870, congress passed an act 'for the improvement of water communication between the Mississippi river and Lake Michigan, by the Wisconsin and Fox rivers;' by which, among other things, the secretary of war was authorized to ascertain the sum which ought to be paid to the Green Bay & Mississippi Canal Company for the transfer of its property and rights of property in the line of water communication between Wisconsin river and the mouth of Fox river, including its locks, dams, canals, and franchises, or so much thereof as, in his judgment, should be needed; and for that purpose to join with the company in the appointment of a board of arbitrators. In making their award, the arbitrators were required to take into consideration the amount of money obtained from the sale of lands ceded by congress to aid in the construction of the water communication which was to be deducted from the valuation found by them. 16 St. c. 210. Under this act arbitrators were appointed, the value of the works ascertained, and an award made, the amount of which having been paid, the entire property was, in 1872, conveyed to the United States. Since then the United States has been the owner and in possession of the works, and congress has made various appropriations to carry on and complete the improvement. The arbitrators, in making their award, proceeded upon the principle that the United States should pay for the works what their construction had cost the state, and the companies succeeding to its interests, after making a reasonable abatement for wear and decay, and deductting the amount obtained from the sale of the ceded lands. Some of the dams constructed had caused the lands of several parties to be overflowed, and in the estimate of the amount to be paid by the United States, no account was taken of the liability of the company for such damages. The question, therefore, soon arose whether the payment of these damages devolved upon the United States, and this question was submitted by the committee on commerce of the house of representatives to the secretary of war, and by him was referred to the assistant judge advocate general. That officer held that liability for the damages incurred from the flowage of water on the lands of others, caused by the works constructed, followed the property transferred, and devolved on the United States. Upon this opinion a bill was prepared for the assumption by them of the company's liability for such damages, which was passed by congress and approved on the third of March, 1875. This act provided that whenever, in the prosecution and maintenance of the improvement mentioned, it should become necessary or proper, in the judgment of the secretary of war, to take possession of any lands, or the right of way over any lands, for canals of cut-offs, or to use any earth, quarries, or other material adjacent to the line of improvement and needful for its prosecution or maintenance, the officers in charge of the works might, in the name of the United States, take possession of and use the same, after having first paid, or secured to be paid, the value thereof, 'which may have been ascertained in the mode provided by the laws of the state' wherein the property lay. The act also provided that in case any lands or other property were then or should be overflowed or injured by means of any part of the works of the improvement theretofore or thereafter constructed for which compensation was then or should become legally owing, and in the opinion of the officers in charge it should not be prudent to lower the dam or dams, the amount of such compensation might be 'ascertained in like manner;' that the department of justice should represent the interest of the United States in legal proceedings under the act and for 'flowage damages' previously occasioned, and that a portion of the appropriation made for the prosecution of the improvement, not exeeding in amount twenty-five thousand dollars, might be applied in payment for property and rights thus taken and used. In the previous year, 1874, the legislature of Wisconsin had passed a law providing for ascertaining the compensation to be made for damages caused to lands by their being overflowed or otherwise injured, or taken by the United States in the construction of any public works. It declared, among other things, that in case the lands of any person had been overflowed or injured or taken, or if it should be found necessary or proper thereafter to overflow, injure, or take the lands of any person for or by reason of the construction of any dam, bridge, lock, or pier, or the repair or enlargement thereof, or the construction, repair, or enlargement of any canal or other works of the United States government in the improvement of any harbor, river, or stream of water in the state, the compensation for damages sustained by the owner or owners of the lands overflowed, injured, or taken might be ascertained, determined, and paid in the manner prescribed in chapter 119 of the Laws of 1872, entitled 'An act in relation to railroads and the organization of railroad companies,' for acquiring title to lands of railroad companies, and that all the provisions of such act properly applicable thereto should apply in the case of the overflow, injury, or taking of lands by the United States government for the purposes mentioned. Chapter 119 of the Laws of 1872, referred to in this act of 1874, prescribes the mode in which land may be condemned for railroad purposes. The company is to file a petition for the appointment of commissioners of appraisal with the clerk of the circuit court of the county in which the property is situated, containing, among other things, a description of the land desired and the names of parties interested in it. Notice is then to be given, by publication for three successive weeks in a newspaper of the county or adjoining county, of the filing of the petition, of the time and place of its presentation, and of the application for the appointment of commissioners. On the presentation of the petition, the parties whose interest may be affected by the proceeding are at liberty to show cause against its prayer. If no sufficient cause be shown, the court or judge may grant the petition and appoint three disinterested and competent freeholders, resident in the county or adjoining county, to ascertain and appraise the compensation to be made to the owner or owners of the property. Either party to the proceeding, if dissatisfied with the award rendered, may appeal from it to the circuit court, where a trial is to be had by a jury and the compensation fixed by them. The proceeding, so far as the ascertainment of compensation is concerned, there takes the form of a regular action at law, in which the petitioner becomes the plaintiff and the contestants the defendants. The chapter also provides that the party interested in the land may institute and conduct the proceedings to a conclusion, if the company delay or omit to prosecute the same. Under the legislation referred to, the present proceeding was instituted by the defendants in error to recover the value of certain lands which had been overflowed by a dam constructed by the canal company in the prosecution of the improvement mentioned. In their petition they ask for the appointment of commissioners for the appraisal of certain lands, which are described, and of the damage caused to them by a dam constructed by the canal company, but owned by the United States, they having succeeded to the title and possession of the company. The also set forth the ownership of the lands, the injury to them from the dam causing the waters of Lake Winnebago to set back and overflow them, and that the dam cannot be maintained without a continuance of such injuries. All the allegations required by the statute were set forth. Commissioners were accordingly appointed, before whom the parties interested appeared, the United States being represented by counsel retained by the department of justice. The awarded the petitioners the sum of $8,000. From this award both parties appealed to the circuit court, where the case was tried before a jury. Previously, however, to its being empaneled, the defendants objected to the action of the court on three grounds: First, that it had no jurisdiction of them; second, that it had no jurisdiction to try a cause in which the United States were a party; and, third, that the act of congress of March 3, 1875, was unconstitutional in that it assumed to confer upon the state court authority to try a cause in which the United States were a party. These objections were overruled, and the trial resulted in a verdict for the plaintiffs for $10,000. The judgment entered thereon was affirmed by the supreme court of the state, and from that court the case is brought here on writ of error. Various exceptions were taken to the rulings of the court on the trial, but as they do not involve any question of federal law they are not open for consideration here. The only point presented upon which we can pass relates to the jurisdiction of the court below; if that can be sustained, its judgment must be affirmed. The position of the counsel of the United States in the court below, as we understand it, was substantially this: That the power vested in the federal government to take private property for the public uses of the United States is, in its nature, exclusive, and its exercise by any state is therefore prohibited as completely as though the prohibition were expressed in terms; that the power cannot, therefore, be delegated to the state of Wisconsin; that the ascertainment of the compensation is involved in the exercise of the power as a necesary part of it, inasmuch as there can be no lawful taking until compensation is made; and that the act of congress transferring to the state board and state court the function of ascertaining the value of the property taken and the amount of compensation to be made, is therefore invalid. There is, in this position, and assumption that the ascertainment of the amount of compensation to be made is an essential element of the power of appropriation; but such is not the case. The power to take private property for public uses, generally termed the right of eminent domain, belongs to every independent government. It is an incident of sovereignty, and, as said in Boom Co. v. Patterso, requires no constitutional recognition. 98 U. S. 406. The provision found in the fifth amendment to the federal constitution, and in the constitutions of the several states, for just compensation for the property taken, is merely a limitation upon the use of the power. It is no part of the power itself, but a condition upon which the power may be exercised. It is undoubtedly true that the power of appropriating private property to public uses vested in the general government—its right of eminent domain, which Vattel defines to be the right of disposing, in case of necessity and for the public safety, of all the wealth of the country—cannot be transferred to a state any more than its other sovereign attributes; and that, when the use to which the property taken is applied is public, the propriety or expediency of the appropriation cannot be called in question by any other authority. But there is no reason why the compensation to be made may not be ascertained by any appropriate tribunal capable of estimating the value of the property. There is nothing in the nature of the matter to be determined which calls for the establishment of any special tribunal by the appropriating power. The proceeding for the ascertainment of the value of the property and consequent compensation to be made, is merely an inquisition to establish a particular fact as a preliminary to the actual taking; and it may be prosecuted before commissioners or special boards or the courts, with or without the intervention of a jury, as the legislative power may designate. All that is required is that it shall be conducted in some fair and just manner, with opportunity to the owners of the property to present evidence as to its value, and to be heard thereon. Whether the tribunal shall be created directly by an act of congress, or one already established by the states shall be adopted for the occasion, is a mere matter of legislative discretion. Undoubtedly IT WAS THE PURPOSE OF THE CONSTITUTION To establish a general goverment independent of, and in some respects superior to, that of the state governments—one which could enforce its own laws through its own officers and tribunals; and this purpose was accomplished. That government can create all the officers and tribunals required for the execution of its powers. Upon this point there can be no question. Kohl v. U. S. 91 U. S. 367. Yet from the time of its establishment that government has been in the habit of using, with the consent of the states, their officers, tribunals, and institutions as its agents. Their use has not been deemed violative of any principle or as in any manner derogating from the sovereign authority of the federal government; but as a matter of convenience and as tending to a great saving of expense. The use of the courts of the states in applying the rules of naturalization prescribed by congress, the exercise at one time by state justices of the peace of the power of committing magistrates for violations of federal law, and the use of state penitentiaries for the confinement of convicts under such laws, are instances of the employment of state tribunals and state institutions in the execution of powers of the general government. At different times various duties have been imposed by acts of congress on state tribunals; they have been invested with jurisdiction in civil suits, and over complaints and prosecutions for fines, penalties, and forfeitures arising under laws of the United States. 1 Kent, 400. And though the jurisdiction thus conferred could not be enforced against the consent of the states, yet, when its exercise was not incompatible with state duties, and the states made no objection to it, the decisions rendered by the state tribunals were upheld. Whatever question might arise as to such delegation of authority, we can see none where the inquiry relates to an incidental fact, not involving in its ascertainment the exercise of any sovereign attribute. Almost, if not quite, from the first year of its existence, it has been the practice of the general government, when necessary, to taken private property for public uses, to resort to state borads and tribunals to ascertain the value of the property, and hence the compensation to be made. Burt v. Merchants' Ins. Co. 106 Mass. 362. In recent statutes such resort is expressly prescribed. For example, on the third of March, 1879, an act was passed for improving a part of Tennessee river, which provided that, whenever it became necessary to take private property, 'the price to be paid shall be determined, and the title and jurisdiction procured, in the manner prescribed by the laws of the state of Alabama.' And, on the fourteenth of June, 1880, an act was passed making an appropriation for constructing reservoirs on the head-waters of the Mississippi, with a provision that 'injuries occasioned to individuals by the overflow of their lands shall be ascertained and determined by agreement, or in accordance with the laws of Minnestota.' These are but examples of many instances of legislation where resort is had to local boards or tribunals to ascertain particular facts by which the general government may be guided in its action. Whatever assent may be necessary to the validity of the proceedings against the United States, owing to their general immunity from process, is given by such legislation. The provisions of the act of 1875, with reference to the property overflowed by dams constructed in the improvement of the navigation of Fox and Wisconsin rivers, that the compensation to be made shall be ascertained in the mode and manner prescribed by the laws of the state, and that in any proceedings to ascertain such compensation the interests of the United States shall be represented by the department of justice, constitutes a sufficient waiver of the immunity. The legislation amounts to a consent to such proceedings as the state laws authorize for the condemnation of property in which the United States are interested. In the present case the overflow of the property for which compensation was asked was caused while the property was held by the canal company, before its acquisition, in 1872, by the United States; and the legislation is, in legal effect, little more than a declaration that the United States will pay the compensation which may be awarded by officers of the state in proceedings taken in accordance with its laws. In any aspect in which the legislation can be viewed, we see no objection to it arising out of the independent or sovereign character of the government of the United States. Judgment affirmed.

107.US.174

1. In a will containing many legacies, bequests, and devises, each present and immediate in form, to individuals and to charitable institutions, a clause expressing a wish and direction that none of the legacies, bequests, or devises "shall be executed or take effect until" a certain memorial hall (in fact nearly finished at the time of the execution of the will and of the testator's death) on land previously conveyed by the testator in trust, "shall be completed and entirely paid for out of my estate," does not suspend the vesting, but only the payment and carrying out of the various legacies, bequests, and devises. 2. Section 2419 of the Code of Georgia of 1873 does not invalidate a charitable devise contained in a will executed within ninety dayd before the testator's death, unless he leaves a wife or child or descendants of a child. 3. The validity of a charitable devise as against the heir at law depends upon the law of the State where the land lies. 4. The validity of a charitable bequest as against the next of kin depends upon the law of the State of the testator's domicile. 5. The law of charities is fully adopted in Georgia, as far as is compatible with a free government where no royal prerogative is exercised. 6. A parcel of land, with buildings thereon, was devised to the trustees of the Independent Presbyterian Church in Savannah, an incorporated religious society, "upon the following terms and conditions, and not otherwise:" 1st. That the trustees should appropriate annually out of the rents and profits the sum of $1,000 "to one or more Presbyterian or Congregational Churches in the State of Georgia in such destitute and needy localities as the proper officers of said Independent Presbyterian Church may select, so as to promote the cause of religion among the poor and feeble churches of the State." 2d. That the trustees should not materially alter the pulpit or galleries of the present church edifice, or sell the lot on which the Sabbath-school room of the church stood. 3d. That the trustees should keep in order the burial place of the testator, which he devised to them for that purpose. Held, that under the Code of Georgia of 1873, sect. 3157, the charitable purposes named in the first and third conditions were good charitable uses, sufficiently defined; that the trustees were capable of taking the devise, and that its validity was not impaired by the conditions subsequent. 7. A devise to a society incorporated "for th6 relief of distressed widows and the schooling and maintaining of poor children," of buildings and land, to "use and appropriate the rents and profits for the support of the school and charities of said institution, without said lot being at any time liable for the debts or contracts of said society," is a good charitable devise. 8. A devise to a society incorporated "for the relief of indigent widows and orphans in the city of Savannah," of buildings and land, "the rents and profits to be appropriated to the benevolent purposes of said society," is a good charitable devise. 9. The rule against perpetuities does not apply to charities; and if a devise is made to one charity in the first instance, and then over, upon a contingency the limitation over to the second charity is good. 10. Restrictions imposed by the charter of a corporation upon the amount of property that it may hold cannot be taken advantage of collaterally by private persons, but only in a direct proceeding by the State. 11. The provision of the Constitution of Georgia of 1868, which declares that "the General Assembly shall have no power to grant corporate powers and privileges to private companies" (with certain exceptions), "but it shall prescribe by law the manner in which such powers shall be exercised by the courts," does not take away from the General Assembly the power to amend the charters of existing corporations by modifying or enlarging their powers. 12. A devise to a historical society of a house containing a collection of books, documents, and works of art, in trust to keep and preserve the same, with the collection therein, and other books and works of art to be purchased by the officers of the society out of the income of a fund bequeathed by the devisor for the purpose, "as a public edifice for a library and academy of arts and sciences," and "to be open for the use of the public" on such terms and under such reasonable regulations as the society may prescribe, is a good charitable devise, and is not invalidated by a requirement to place and keep over the entrance a marble slab with the name of the testator engraved thereon; and if the society is incapable of executing the trust, a court of equity, in the exercise of its ordinary jurisdiction, and under sect. 8195 of the Code of Georgia of 1873, may appoint a new trustee. 13. A devise and bequest in trust for the building, endowment, and maintenance of "a hospital for females within the city of Savannah, on a permanent basis, into which sick and indigent females are to be admitted and cared for in such manner and on such terms as may be defined and prescribed by" certain directresses named and their associates, who are to obtain an act of incorporation for the purpose, is a valid charitable devise and bequest, although no time is limited for the erection of the building or the obtaining of the charter. 14. A bequest "to the first Christian church erected or to be erected in the village of Telfairville in Burke County, or to such persons as may become trustees of the same," is a good charitable bequest.

The plaintiffs, in the first place, contend that by the twenty-second clause of the will all the devises and bequests, as well those to private persons as those for charitable purposes, are brought within the rule against perpetuities, by which every devise or bequest is void which may by possibility not take effect within a life or lives in being and 21 years afterwards. That clause is as follows: 'Twenty-second. It is my wish, and I hereby so direct, that none of the legacies, bequests, and devises in any of the clauses of this my will shall be executed or take effect until the building and other improvements on the lot on the corner of Gaston and Whittaker streets, and known as the Hodgson Memorial Hall, which I have conveyed in trust to the Georgia Historical Society, shall be completed and entirely paid for out of my estate.' The bill, which was filed nearly four years after the death of the testatrix, alleges, and the demurrer admits, that the building and other improvements referred to were in course of construction at the time of her death, but were not completed until many months thereafter, but whether they were yet entirely paid for the plaintiffs were not certainly informed, and that, if not paid for, it was the only debt known to them now existing against the estate. Reading the twenty-second clause in connection with the other parts of the will, and in the light of the attending facts, it is quite clear that the words 'take effect' are used by the testatrix as synonymous with or equivalent to the word 'executed,' with which they are coupled, and not as signifying that the devises and bequests shall not vest immediately, but only that they shall not be paid or carried out until the debt contracted by the testatrix for the construction of the Hodgson Memorial Hall shall have been paid out of her estate. Each devise and bequest is present and immediate in form, introduced by the words 'I give, devise, and bequeath.' The bill shows that the building and improvements referred to were, at the time of the death of the testatrix, in the course of construction, and so far advanced that they were actually completed within some months afterwards, so that the probable cost must have been capable of estimation at the time of the making of the will. The twenty-second clause is but a declaration of what the law would require, that the debt of the testatrix for the construction of the memorial hall must be first paid out of her estate before her devisees and legatees receive any benefit therefrom. The next objection, which touches all the devises to charitable purposes, is based on the following provision of the Code of Georgia of 1873: 'Sec. 2419. No person leaving a wife or child, or descendants of child, shall by will devise more than one-third of his estate to any charitable, religious, educational, or civil institution, to the exclusion of such wife or child; and in all cases the will containing such devise shall be executed at least 90 days before the death of the testator, or such devise shall be void.' The plaintiffs contend that the latter part of this section applies to every will containing a charitable devise, whether the testator does or does not leave a wife or child or the descendants of a child; and that, therefore, although this testatrix left no issue and had never been married, yet the will having been executed less than 90 days before her death, the charitable devises contained therein are void. In support of this position reference is made to cases in the courts of New York and Pennsylvania. Harris v. Slaght, 46 Barb. 470; S. C. nom. Harris v. American Bible Society, 2 Abb. (N. Y.) App. 316; Lefevre v. Lefevre, 59 N. Y. 434; Price v. Maxwell, 28 Pa. St. 23; McLean v. Wade, 41 Pa. St. 266; Miller v. Porter, 53 Pa. St. 292; Rhymer's Appeal, 93 Pa. St. 142. But the statutes under which those cases were decided were quite different from that of Georgia. The enactment in New York formed part of an act for the incorporation of charitable societies, and is as follows: 'Any corporation formed under this act shall be capable of taking, holding, or receiving any property, real or personal, by virtue of any devise or bequest contained in any last will or testament of any person whatsoever, the clear annual income of which devise or bequest shall not exceed the sum of $10,000: provided, no person leaving a wife, or child, or parent, shall devise or bequeath to such institution or corporation more than one-fourth of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of such one-fourth; and no such devise or bequest shall be valid in any will which shall not have been made and executed at least two months before the death of the testator.' St. N. Y. (1848,) c. 319, § 6; 2 N. Y. Rev. St. (Ed. 1859,) c. 18, tit. 7, § 6. The leading clause of that section, to which the last clause of the same section was held to relate, and which is wholly omitted in the Georgia statute, spoke of devises and bequests to charitable corporations 'contained in any last will or testament of any person whatsoever.' The provision of the corresponding, statute of Pennsylvania was still plainer, for it did not mention wife or child at all, but enacted in the most positive words that—— 'No estate, real or personal, shall hereafter be bequeathed, devised, or conveyed to any body politic, or to any person, in trust for religious or charitable uses, except the same be done by deed or will, attested by two credible, and, at the time, disinterested witnesses, at least one calendar month before the decease of the testator or alienor; and all dispositions of property contrary hereto shall be void, and go to the residuary legatee or devisee, next of kin, or heirs, according to law: provided, that every disposition of property within said period, bona fide made for a fair valuable consideration, shall not be hereby avoided.' St. Pa. (1855,) c. 347, § 11; Purdon, Dig. (10th Ed.) 208. But in the provision on which the appellants rely, which is inserted in the chapter on wills of the Code of Georgia, and is the only provision as to charitable devises contained in that chapter, the leading clause is limited to the will of a person, leaving a wife or child or descendents of a child, containing a devise to a charitable institution to the exclusion of such wife or child; and the words in the subsequent clause, 'in all cases the will containing such devise,' naturally, if not necessarily, refer to a will containing a devise to such an institution by a person leaving a wife or issue. The provision has been so construed by the supreme court of Georgia in a case decided in 1867, and again in 1878 in the case of this very will. Reynolds v. Bristow, 37 Ga. 283; Wetter v. Habersham, 60 Ga. 193, 194, 203. It is suggested by the learned counsel for the appellants that what was said upon this point in each of those cases was obiter dictum, because the question at issue was not of the construction or effect of the will, but only whether it should be admitted to probate. But the reports clearly show that the court considered that the question whether the will was illegal and void, so far as regarded the charitable devises, because in contravention of this statute, was presented for adjudication upon the offer of the whole will for probate. The separate objections taken to the several charitable devises and bequests remain to be considered. According to the uniform course of the decisions of this court, the validity of these devises, as against the heirs at law, depends upon the law of the state in which the lands lie, and the validity of the bequests, as against the next of kin, upon the law of the state in which the testatrix had her domicile. Vidal v. Girard, 2 How. 127; Wheeler v. Smith, 9 How. 55; McDonogh v. Murdoch, 15 How. 367; Fontain v. Ravenel, 17 How. 369, 384, 394; Perin v. Carey, 24 How. 465; Lorings v. Marsh, 6 Wall. 337; U. S. v. Fox, 94 U. S. 315; Kain v. Gibboney, 101 U. S. 362; Russell v. Allen, ante, 327. The Code of Georgia of 1873 contains the following provisions on the subject of charitable uses: 'Sec. 2468. A devise or bequest to a charitable use will be sustained and carried out in this state; and in all cases where there is a general intention manifested by the testator to effect a certain purpose, and the particular mode in which he directs it to be done fails from any cause, a court of chancery may, by approximation, effectuate the purpose in a manner most similar to that indicated by the testator.' 'Sec. 3155. Equity has jurisdiction to carry into effect the charitable bequest of a testator, or founder, or donor, where the same are definite and specific in their objects, and capable of being executed. 'Sec. 3156. If the specific mode of execution be for any cause impossible, and the charitable intent be still manifest and definite, the court may, by approximation, give effect in a manner next most consonant with the specific mode prescribed. 'Sec. 3157. The following subjects are proper matters of charity for the jurisdiction of equity: (1) The relief of aged, impotent, diseased, or poor people; (2) every educational purpose; (3) provisions for religious instruction of worship; (4) for the construction or repair of public works, or highways, or other public conveniences; (5) the promotion of any craft or persons engaging therein; (6) for the redemption or relief of prisoners or captives; (7) for the improvement or repair of burying-grounds or tombstones; (8) other similar subjects, having for their object the relief of human suffering, or the promotion of human civilization. 'Sec. 3158. A charity once inaugurated is always subject to the supervision and direction of a court of equity, to render effectual its purpose and object.' These provisions were evidently enacted to clear up the doubts created by previous conflicting decisions and opinions of the supreme court of Georgia. Beall v. Fox, 4 Ga. 404; Am. Col. Soc. v. Gartrell, 23 Ga. 448; Walker v. Walker, 25 Ga. 420; Beall v. Drane, 25 Ga. 430. They show, as was well observed by Mr. Justice BRADLEY in the circuit court, 'that the law of charities is fully adopted in Georgia, as far as is compatible with a free government where no royal prerogative is exercised.' 3 Woods, 469. And such had been the construction given to the corresponding sections of the Code of 1865 by the supreme court of the state in a well-considered judgment, in which it was held that charitable bequests, the general objects of which the testator had pointed out, or fixed any means for pointing out, were sufficiently 'definite and specific in their objects, and capable of being executed,' under the provisions of the Code and the ordinary jurisdiction of courts of chancery; and therefore that a bequest to a county court of a sum of money to be placed in the hands of four men, who were to give security, and lend out the principal, and pay over the interest annually to that court, 'to pay for the education of poor children belonging to the county,' was a good charitable bequest. Newson v. Starke, 46 Ga. 88. In the will before us, the first of the devises to charitable uses is as follows: 'Tenth. I hereby give, devise, and bequeath to the trustees of the Independent Presbyterian Church of the city of Savannah all that full lot of land in the city of Savannah on the south-west corner of Broughton and Bull streets, with the buildings and improvements thereon, to have and to hold the same on the following terms and conditions, and not otherwise, to-wit: First. That the trustees of the said Independent Church shall appropriate annually, out of the rents and profits of said lot and improvements, the sum of $1,000 to one or more Presbyterian or Congregational churches in the state of Georgia, in such destitute and needy localities as the proper officers of said Independent Presbyterian Church may select, so as to promote the cause of religion among the poor and feeble churches of the state. Second. This gift and devise is made on the further condition that neither the trustees nor any other officer of said Independent Presbyterian Church will have or authorize any material alteration or change made in the pulpit or galleries of the present church edifice on the corner of Bull and South Broad streets, but will permit the same to remain substantially as they are, subject only to proper repairs and improvements; nor shall they sell or alien the lot on which the Sabbath school room of said church now stands, but shall hold the same to be improved in such manner as the trustees or pew-holders may direct. Third. Upon the further condition that the trustees of said Independent Presbyterian Church will keep in good order, and have thoroughly cleaned up every spring and autumn, my lot in the cemetery of Bonaventure, and that no interment or burial of any person shall ever take place either in the vault or within the inclosure of said lot; and for the purpose of having the same protected and cared for, I hereby give, devise, and bequeath my said lot in the Bonaventure cemetery to the trustees of the Independent Presbyterian Church and their successors.' The act of the legislature of Georgia, of the eighth of December, 1806, incorporating the trustees of the Presbyterian Church of the City of Savannah, (whose name, by a subsequent act of the sixteenth of May, 1821, has been changed to that by which they are called in the will,) provides, in section 2, that they 'and their successors in office shall be invested with all manner of property, real and personal, all moneys due and to grow due, donations, gifts, grants, privileges, and immunities whatsoever, which shall or may belong to said Presbyterian church at the time of the passing of this act, or which shall or may at any time or times hereafter be granted, given, conveyed. or transferred to them, or their successors in office, to have and to hold the same to the said trustees, and their successors in office, to the only proper use, benefit, and behoof of the said church forever;' in section 4, that 'nothing herein contained shall be construed to vest in the said trustees any right or title to any estate or property whatsoever, real or personal, other than such as doth, or may rightfully and lawfully, belong to the said Presbyterian church, or congregation, hereby made a body corporate;' and in section 5, that 'it shall not be lawful for said trustees, or their successors in office, at any time or times hereafter, to grant, bargain, sell, alien, or convey any real estate whatsoever, belonging to the said church, to any person or persons, under any pretense or upon any consideration whatsoever, so as to dispose of the fee-simple thereof.' It is objected that this corporation is not empowered under its charter to accept and administer this charity. But it is a novel proposition, as inconsistent with the rules of law as it is with the dictates of religion, that a Christian church or religious society cannot receive and distribute money to poor churches of its own denomination so as to promote that cause of religion in the state in which it is established. To hold this gift to be too indefinite and uncertain would be to disregard the elementary principles of the law of charitable uses. The appropriation of a certain sum annually to one or more churches of a certain denomination in such destitute and needy localities as the trustees may select, so as to promote the cause of religion among the poor and feeble churches of the state, describes the general nature of the charitable purpose, while leaving the selection of the particular objects to the trustees, and is a good charitable use, sufficiently defined. Bartlett v. King, 12 Mass. 537; Going v. Emery, 16 Pick. 107; North Adams Universalist Society v. Fitch, 8 Gray, 421. The other objections to the validity of this devise are equally unavailing. The condition that no material alteration or change, but only proper repairs and improvements, shall be made in the pulpit or galleries of the present church, (even if illegal, which we see no reason for supposing,) is a condition subsequent, relating to the care and use of the property after the gift shall have vested in the devisee, and cannot, therefore, affect the original validity of the gift. The condition that the trustee shall not alienate the land on which the school-room stands is also a condition subsequent, and is in accordance with the fifth section of their charter and with the general law upon the subject. It will not prevent a court of chancery from permitting, in case of necessity arising from unforeseen change of circumstances, the sale of the land and the application of the proceeds to the purposes of the trust. Tudor, Char. Trusts, (2d Ed.) 298; Stanley v. Colt, 5 Wall. 119, 169. The conditions as to the care and keeping of the tomb or burial-place of the testatrix is likewise a condition subsequent, and, even if invalid, would not defeat the charitable gift. Giles v. Boston Fatherless & Widows' Society, 10 Allen, 355. In England there has been a difference of opinion upon the question whether the maintenance and repair of the tomb or monument of the donor is a good charitable use. Down to the time of the American revolution, as by the civil law, it appears to have been held that it was. 3 Inst. 202; Masters v. Masters, 1 P. Wms. 421, 423, and note; Durour v. Motteux, 1 Ves. Sr. 320; Gravenor v. Hallum, Amb. 643; Boyle, Char. 45-51; Just. Inst. lib. 2, tit. 1, §§ 8, 9; Dig. 11, 7, 2, 5; 47, 12, 3, 2. According to the later English cases it is not. Doe v. Pitcher, 3 Maule & S. 407; Same v. Same, 6 Taunt. 359; S. C. 2 Marsh. 61; Willis v. Brown, 2 Jur. 987; Hoare v. Osborne, L. R. 1 Eq. 585; Fiske v. Atty. Gen. L. R. 4 Eq. 521; In re Birkett, 9 Ch. Div. 576. See, also, Dexter v. Gardner, 7 Allen, 243, 247. But it is unnecessary to examine and weight these conflicting authorities, or to determine whether the devise of the burial-place of the testatrix and the direction to keep it in good order could be upheld in the absence of local statute, because they are clearly valid under the Code of Georgia, which enumerates among charitable uses 'the improvement or repair of burying-grounds or tombstones.' Code Ga. 1873, § 3157, cl. 7. The eleventh clause of the will contains a devise to the Union So. ciety of Savannah of a parcel of land in that city, with the buildings and improvements thereon, 'but on the express condition that said society shall not sell or alienate said lot, but shall use and appropriate the rents and profits of the same for the support of the school and charities of said institution, without said lot being at any time liable for the debts or contracts of said society.' The Union Society was incorporated by a statute of the fourteenth of August, 1786, 'for the relief of distressed widows, and the schooling and maintaining of poor children.' The twelfth clause devises to the Widows' Society of Savannah another parcel of land in that city, 'on which the improvements now consist of four brick tenement buildings, the rents and profits of the same to be appropriated to the benevolent purposes of said society, but this devise is made on condition the said Savannah Widows' Society shall not sell or alienate said lot or improvements, nor hold the same subject to the debts, contracts, or liabilities of said society.' The widows' society was incorporated, as stated in the title and repeated in the body of its charter granted in 1837, 'for the relief of indigent widows and orphans in the city of Savannah.' 'The relief of aged, impotent, and poor persons' is within the very words of the statute of 43 Eliz. c. 4, § 1, and of the Code of Georgia of 1873, § 3157; and all educational purposes are within the terms of that Code, and within the scope and principle of the statute of Elizabeth. Russell v. Allen, supra. The fact that the gift to the widows' society is directed 'to be appropriated to the benevolent purposes of said society' does not affect its validity, because the charter of the society shows that all its purposes are charitable, in the legal sense. It is only when a gift might be applied to benevolent purposes which are not charitable in that sense, that the gift fails. Saltonstall v. Sanders, 11 Allen, 446; Suter v. Hilliard, 132 Mass. 412; De Camp v. Dobbins, 2 Stew. (N. J.) 36; Adye v. Smith, 44 Conn. 60; In re Jarman's Estate, 8 Ch. Div. 584. The conditions subsequent have no greater effect than the corresponding conditions in the tenth clause, already considered. The next clause of the will contains a provision applicable to the tenth, eleventh, and twelfth clauses, and is as follows: 'Thirteenth. Should either one or more of the corporate bodies or institutions named in the preceding items of my will attempt to sell, alienate, or otherwise dispose of the property and estate therein devised, contrary to the terms and conditions therein set forth, or should there be any levy on the same to satisfy the debts of said corporation, then I hereby direct my executors or legal representatives to repossess and enter upon said property or estate as to which the conditions may be so broken or violated, and in that event I do hereby give and devise the said property so entered upon and repossessed unto the Savannah Female Orphan Asylum.' There is nothing in this clause by which the heirs at law or next of kin can be benefited in any possible view. If the conditions against voluntary alienation and levy of execution are invalid, the previous devises stand good. If those conditions are valid, the devise over to the Savannah Female Orphan Asylum, an undoubted charity, will take effect; for as the estate is no more perpetual in two successive charities than in one charity, and as the rule against perpetuities does not apply to charities, it follows that if a gift is made to one charity in the first instance, and then over to another charity upon the happening of a contingency which may or may not take place within the limit of that rule, the limitation over to the second charity is good. Christ's Hospital v. Grainger, 16 Sim. 84, 100; 1 Macn. & G. 460; 1 Hall & T. 533; McDonogh v. Murdoch, 15 How. 367, 412, 415; Russell v. Allen, supra. The fourteenth clause of the will contains a devise and bequest to the Georgia Historical Society to establish a public library and museum, and is as follows: 'Fourteenth. I hereby give, devise, and bequeath to the Georgia Historical Society and its successors all that lot or parcel of land, with the buildings and improvements thereon, fronting on St. James square, in the city of Savannah, and running back to Jefferson street, known in the plan of said city as lot letter N, Heathcote ward, the same having been for many years past the residence of my family, together with all my books, papers, documents, pictures, statuary, and works of art, or having relation to art or science, and all the furniture of every description in the dwelling-house and on the premises, (except bedding and table service, such as china, crockery, glass, cutlery, silver, plate, and linen,) and all fixtures and attachments to the same; to have and to hold the said lot and improvements, books, pictures, statutory, furniture, and fixtures to the said Georgia Historical Society and its successors, in special trust, to keep and preserve the same as a public edifice for a library and academy of arts and sciences, in which the books, pictures, and works of art herein bequeathed, and such others as may be purchased out of the income, rents, and profits of the bequest hereinafter made for that purpose, shall be permanently kept and cared for, to be open for the use of the public on such terms and under such reasonable regulations as the said Georgia Historical Society may from time to time prescribe; but this devise and bequest is made upon condition that the Georgia Historical Society shall cause to be placed and kept, over and against the front porch or entrance of the main building on said lot, a marble slab or tablet, on which shall be cut or engraved the following words, to-wit, 'TELFAIR ACADEMY OF ARTS AND SCIENCES,' the word 'Telfair' being in larger letters and occupying a separate line above the other words; and on the further condition that no part of the buildings shall ever be occupied as a private residence or rented out for money, and none but a janitor and such other persons as may be employed to manage and take care of the premises shall occupy or reside in or upon the same, and that no part of the same shall be used for public meetings or exhibitions, or for eating, drinking, or smoking, and that no part of the lot or improvements shall ever be sold, alienated, or incumbered, but the same shall be preserved for the purposes herein set forth. And it is my wish that whenever the walls of the building shall require renovating by paint or otherwise, the present color and design shall be adhered to as far as practicable. For the purpose of providing more effectually for the accomplishment of the objects contemplated in this item or clause of my will, I hereby give, devise, and bequeath to the Georgia Historical Society and its successors one thousand shares of the capital stock of the Augusta & Savannah Railroad of the state of Georgia, in special trust, to apply the dividends, income, rents, and profits, arising from the same, to the repairs and maintenance of said buildings and premises, and the payment of all expenses attendant upon the management and care of the institution herein provided for, and then to apply the remaining income, rents, and profits in adding to the library, and such works of art and science as the proper officers of the Georgia Historical Society may select, and in the preservation and proper use of the same, so as to carry into effect in good faith the objects of this devise and bequest.' The Georgia Historical Society was incorporated by a statute of the nineteenth of December, 1839, the preamble of which recites that 'the members of a society instituted in the city of Savannah for the purpose of collecting, preserving, and diffusing information relating to the history of the state of Georgia in particular, and of American history generally, have applied for an act of incorporation.' The first section makes them a corporation with the usual powers, and especially 'to purchase, take, receive, hold, and enjoy, to them and their successors, any goods and chattels, lands and tenements, and to sell, lease, or otherwise dispose of the same, or any part thereof, at their will and pleasure: provided, that the clear annual income of such real and personal estate shall not exceed the sum of $5,000; and provided, also, that the funds of the said corporation shall be used and appropriated to the purposes stated in the preamble of this act, and those only.' And the fourth section declares that the act of incorporation shall be a public act, 'and shall be construed benignly and favorably for every beneficial purpose therein intended.' It is stated in the bill, and admitted by the demurrer, that the net income of the Georgia Historical Society, from property held by it at the time of the death of the testatrix, was between three and four thousand dollars, and that the income of the property now bequeathed to it will add $7,000 to that income. It is argued for the appellants that because the effect of the gift will be to increase the property of the corporation to double the amount which the corporation is allowed by the proviso in the first section in the charter to hold, the whole gift is void. But there are two conclusive answers to this argument: (1) Restrictions imposed by the charter of a corporation upon the amount of property that it may hold cannot be taken advantage of collaterally by private persons, but only in a direct proceeding by the state which created it. Runyan v. Coster, 14 Pet. 122, 131; Smith v. Sheeley, 12 Wall. 358, 361; Bogardus v. Trinity Church, 4 Sandf. Ch. 633, 758; De Camp v. Dobbins, 2 Stew. (N. J.) 36; Davis v. Old Colony R. Co. 131 Mass. 258, 273. (2) By an act of amendment of the twenty-eighth of October, 1870, the provisos in the first section of the original charter are repealed. It is contended that the act of 1870 is unconstitutional and void, as being a grant by the legislature of corporative powers and privileges, in contravention of this provision in the constitution of the state: 'The general assembly shall have no power to grant corporate powers and privileges to private companies, except to banking, insurance, railroad, canal, navigation, mining, express, lumber, manufacturing, and telegraph companies; nor to make or change election precincts; nor to establish bridges or ferries; nor to change names of legitimate children; but it shall prescribe by law the manner in which such powers shall be exercised by the courts.' Const. Ga. (1868,) art. 3, sec. 6, § 5; Code 1873, § 5068. But the words 'corporate powers and privileges,' as here used, signify the corporate franchise,—the aggregate powers and privileges which constitute a corporation,—not every separate power and privilege which may be conferred upon a corporate body. The object is to take away from the legislature and to vest in the courts, under its direction for the future, the creation of private corporations for literary, religious, charitable or other purposes, except those specially excepted; but not to prevent the legislature from amending the charters of corporations already existing, and modifying or enlarging their powers, either by repealing former restrictions or otherwise. The act of 1870 is therefore constitutional and valid. That a devise and bequest 'to keep and preserve as a public edifice' a house containing a library and an academy or museum of works of art and science, 'to be open for the use of the public' on such terms and under such reasonable regulations as the trustees may from time to time prescribe, is a valid charity, cannot be doubted. British Museum v. White, 2 Sim. & S. 594; Drury v. Natick, 10 Allen, 169; Donohugh's Appeal, 86 Pa. St. 306. The directions tending to perpetuate the memory of the founder do not impair its public character or its legal validity. In the cases of Thomson v. Shakespeare, H. R. V. Johns. 612, and 1 De Gex, F. & J. 399, and of Carne v. Long, 2 De Gex, F. & J. 75, on which the appellants rely, the gifts failed because not exclusively devoted to a public charitable use, the definition in the one case including purposes that might not be charitable, and the bequest in the other being to a private library established for the benefit of the subscribers alone. See Beaumont v. Oliveira, L. R. 4 Ch. 309, 314, 315. A corporation may hold and execute a trust for charitable objects in accord with or tending to promote the purposes of its creation, although such as it might not, by its charter or by general laws, have authority itself to establish or to spend its corporate funds for. A city, for instance, may take a devise in trust to maintain a college, an orphan school, or an asylum. Vidal v. Girard, 2 How. 127; McDonogh v. Murdoch, 15 How. 367; Parin v. Carey, 24 How. 465. There is some ground for holding that the objects of a historical society would be promoted by administering a devise and bequest to maintain for the public instruction and benefit a house containing a collection of books, documents, and works of art, with other such books and works to be selected by the officers of the society and purchased out of the surplus income, and that the purposes of the trust are, in the words of Mr. Justice STORY in Vidal v. Girard, 2 How. 189, 'germane to the objects of the incorporation,' and 'relate to matters which will promote and aid and perfect those objects.' But if any doubt remains of the capacity of the Georgia Historical Society to assume and execute those charitable trusts, it would be within the ordinary jurisdiction of a court of equity to appoint other trustees in its stead, according to the maxim, expressly affirmed in the Code of Georgia, that a trust shall never fail for the want of a trustee. Reeve v. Atty. Gen. 3 Hare, 191; Winslow v. Cummings, 3 Cush. 358; Code Ga. 1873, § 3195. The residuary clause of the will disposes of real and personal estate to the amount of $300,000, and is as follows: 'Twenty-first. All the residue of my estate, of whatever the same may consist, real, personal, and mixed, and wherever situated, I hereby give, devise, and bequeath to my executors hereinafter named, and to the survivor of them, and to the successors in this trust of said survivor in trust, to use and appropriate the proceeds arising from the same to the building and erection and endowment of a hospital for females within the city of Savannah, on a permanent basis, into which sick and indigent females are to be admitted and cared for in such manner and on such terms as may be defined and prescribed by the trustees or directresses provided for in this item or clause in my will. The income, rents, and profits of such portion of the residuum of my estate as may not be expended in the building, erection, and furnishing said hospital shall be annually appropriated to the support and maintenance of the same. My desire and request is that a thoroughly convenient hospital of moderate dimensions, suited to the wants of the city of Savannah, and capable of enlargement if necessity should require, may be built and erected, with no unnecessary display connected with it. And I do hereby nominate, as the first trustees, managers, or directresses of said hospital, Mrs. Louisa F. Gilmer, Sarah Owens, Mary Elliott, (formerly Habersham,) Susan Mann, Florence Bourquin, Eva West, and Eliza Chisholm,—all of Savannah, Georgia,—and do request and instruct my executors to advise and consult with the ladies named as to the construction, arrangement, and furnishing of said hospital. It is further my wish and desire, and I do hereby request, that a suitable and proper act of incorporation for said hospital shall be obtained from such tribunal in the state of Georgia as may have jurisdiction in the premises, to be called and known as the 'Telfair Hospital for Females,' with the ladies above named, or such of them as may consent to serve, and such others as they may apply for to be associated with them, as the first trustees, managers, or directresses under said act of incorporation, with power to fill any vacancies that occur in their number. And for the purposes of accomplishing the objects contemplated in this item or clause of my will, I do hereby authorize and empower my executors, or the survivor of them, to sell and convey all or any portion of the real estate, or any interest in the same, which I may have or be entitled to, and not given or devised in any of the previous items or clauses of this my will, using their discretion as to private or public sales, and as to whether and at what time such sales shall be made.' That this devise and bequest to establish a hospital for sick and indigent females in the city of Savannah is sufficiently definite, and that its validity is not impaired by the provision of the will requiring an act of incorporation to be obtained, are clearly settled by the cases of Inglis v. Sailors' Snug Harbor, 3 Pet. 99; Ould v. Washington Hospital, 95 U. S. 303; and Russell v. Allen, supra. The bequest in the twenty-third clause of the will, of $1,000 'to the first Christian church erected or to be erected in the village of Telfairville, in Burke county, or to such persons as may become trustees of the same,' is supported by the same authorities, and is directly within the decisions of Lord THURLOW in Atty. Gen. v. Bishop of Chester, 1 Bro. Ch. 444; of Sir John COPLEY, master of the rolls, (afterwards Lord LYNDHURST,) in Society for Propagation of the Gospel v. Atty. Gen. 3 Russ. 142; and of Lord HATHERLEY in Sinnett v. Herbert, L. R. 7 Ch. 232. See, also, Cumming v. Reid Memorial Church, 64 Ga. 105. The result is that all the devises and bequests contained in Miss Telfair's will are valid as against her heirs at law and next of kin. Decree affirmed.

107.US.98

A railroad corporation, whose railroad extends across the State bf Wisconsin from Lake ichigan to the Mississippi River, and which is authorized, by its charter, to make "such contracts with any other person or corporation whatsoever as the management of its railroad and the convenience and interest of the corporation and the conduct of its affairs may in the judgment of its directors require;" and, by general laws, to make such contracts with any railroad company, whose road terminates on the eastern shore of Lake Michigan, "as will enable them to run their roads in connection with each other in such manner as they shall deem most beneficial to their interest," and "to build, construct, and run, as part of its corporate property, such number of steamboats or vessels as they may deem necessary to facilitate the business operations of such company or companies;" and also "to accept from any other State or Territory of the United States, and use, any powers or privileges applicable to the carrying of persons and property by railway or steamboat in said State or Territory;" has the power, for the purpose of carrying passengers and freight in connection with its own railroad and business, to enter into an agreement with the proprietors of steamboats running, by way of the Great Lakes, between its eastern terminus and Buffalo in the State of New York, by which it guarantees that the gross earnings of each boat for two years shall amount to a certain sum.

This is an action brought by the Union Steam-boat Company, a corporation established by the laws of the state of New York at Buffalo, in that state, against the Green Bay & Minnesota Railroad Company, a corporation established by the laws of the state of Wisconsin, and having its principal place of business in this state. The declaration alleges that the defendant was chartered in 1866, and was organized to construct and operate a railroad across the state of Wisconsin, east and west from the city of Green Bay to the Mississippi river, and its road was built and actually opened for business in December, 1873; that 'it became important for said defendant to make arrangements in regard to the business of carrying passengers and freight carried eastwardly over its road, and destined for points east of said city of Green Bay and out of the state, for their transportation east, as well as to secure business of carrying passengers and freight arriving at or being moved west by way of the defendant's route and railway;' and on the ninth of September, 1873, the plaintiff and defendant entered into a contract under seal, whereby, in consideration that the plaintiff would, during the season of navigation in 1876 and 1877, run between Buffalo and Green Bay, by way of the great lakes, and touching at intermediate ports, two steampropellers, then belonging to the plaintiff, for the purpose of carrying passengers and freight to and from Green Bay in connection with the defendant's railway and business and docks at that place, the defendant duly undertook and guarantied to the plaintiff that the gross earnings of each propeller in such business should be for each of the two years the sum of $45,000 at least, and that if it should be less, the defendant would pay the difference to the plaintiff on or before the first of January next succeeding the close of navigation in each year. The plaintiff further alleges that it duly put the propellers on the route and kept them running thereon, in connection with the defendant's business and in accordance with the contract, during the seasons of 1876 and 1877, and in all respects duly performed all the conditions of the contract on its part; that the gross earnings of each propeller for each season fell short of the amount guarantied by a certain sum named, which thereupon became due and payable to the plaintiff from the defendant, according to the contract on the first of January following; and that the two corporations were duly authorized and empowered by their respective charters and the laws of Wisconsin to make the contract. The answer denies that the defendant was so empowered, and avers that it has no information or knowledge sufficient to form a belief as to whether the plaintiff was so empowered; admits the making of the contract stated in the declaration, and sets forth other provisions of that contract, with which it alleges that the plaintiff had not complied. The plaintiff filed a replication denying the allegations of the answer. Upon a trial in June, 1878, a verdict was returned for the plaintiff for $78,876.13, and judgment rendered thereon, and the defendant sued out this writ of error. No bill of exceptions having been seasonably tendered, the only question presented by the record is whether, under the general laws of the state of Wisconsin, and the defendant's charter, which by those laws (as existing at the times of the granting of the charter, and of the trial; Rev. St. 1858, c. 5, § 2) was declared to be a public act, the contract sued on, as set forth in the declaration and admitted in the answer, is ultra vires of the defendant corporation. The general doctrine upon this subject is now well settled. The charter of a corporation, read in connection with the general laws applicable to it, is the measure of its powers, and a contract manifestly beyond those powers will not sustain an action against the corporation. But whatever, under the charter and other general laws, reasonably construed, may fairly be regarded as incidental to to the objects for which the corporation is created, is not to be taken as prohibited. Thomas v. Railroad Co. 101 U. S. 71; Attorney General v. Great Eastern Ry. Co. 5 App. Cas. 473; Davis v. Old Colony R. Co. 131 Mass. 258. The railroad of this corporation extends across the state of Wisconsin from its eastern boundary on Lake Michigan to the Mississippi river; and its charter empowers the directors to make such agreements with any person or corporation whatsoever 'as the construction of their railroad, or its management, and the convenience and interest of the company, and the conduct of its affairs, may in their judgment require.' Priv. Laws, Wis. 1866, c. 540, § 7. It was within the powers of the corporation, as incidental to its own proper business, to agree to transport as a carrier, over connecting railroad and steam-boat lines, passengers and freight intrusted to it for carriage over its own line. Railway Co. v. McCarthy, 96 U. S. 258. The general laws of Wisconsin, in force at the time of the grant of this charter, authorize any railroad company in this state to make such contracts with any railroad company, whose road terminates on the eastern shore of Lake Michigan, within the state of Michigan, 'as will enable said companies to run their roads in connection with each other in such manner as they shall deem most beneficial to their interest,' and 'to build, construct, and run, as a part of their corporate property, such number of steam-boats or vessels as they may deem necessary to facilitate the business operations of such company or companies.' Gen.Laws Wis. 1853, c. 76. And, by the general railroad act of 1872, 'any railroad company, heretofore or hereafter incorporated by or under the laws of this state, may exercise all its rights, franchises, and privileges in any other state or territory of the United States, under and subject to the laws of the state or territory where it may exercise, or attempt to exercise, the same, and may accept from any other state or territory and use any additional or other powers or privileges applicable to the carrying of persons and property by railway or steam-boat in said state or territory, or otherwise, applicable to the doings of said company in said state or territory.' Gen. Laws Wis. 1872, c. 109, § 51. These statutes show that the legislature of Wisconsin, recognizing the fact that, from the geographical situation of the state, the railroads which traverse it from east to west form part of a line of transportation extending across the continent, intended to confer upon the corporations owning such railroads very large powers of contracting with other corporations owning railroads or steam-boats, whose course includes connecting parts of the same great line of transportation. To build and run, as part of the defendant's corporate property, such number of steam-boats on Lake Michigan as it might deem necessary to facilitate its business, would be within the power expressly conferred by the statute of 1853; and we are of opinion that, taking into consideration all the statutes above quoted, it was equally within its corporate powers to hire, either by the trip or by the season, steam-boats belonging to others, running from its eastern terminus along the great lakes eastward; or to employ such steamboats to carry passengers and freight, in connection with its own railroad and business, under an agreement by which it guarantied to the proprietors of the boats that their gross earnings for the season should not fall below a certain sum. There is, therefore, nothing in the record before us to show that the agreement sued on was beyond the corporate powers of this railroad company. Judgment affirmed.

109.US.556

1. The 1st Judicial District Court of Dakota, sitting as a circuit court of the United States, has jurisdiction under the laws a he United States, over offences made punishable by those laws comrffitted within that part of the Sioux reservation which is within the limits of the Territory: 2. In the interpretation of statutes, clauses which have been repealed may still be considered in construing provisions which remain in force. 3. The definition of the term "Indian Country," contained in c. 61, § 1 of the act of 1834, 4 Stat. 729, though not incorporated in the Revised Statutes, and though repealed simultaneously with their enactment, may be referred to in order to determine what is meant by the term when used in statutes ; and it applies to all the country to which the Indian title has not been extinguished within the limits of the United States, whether within a reservation or not, and whether acquired before or since the passage of that act. 4. The legislation of the United States may be constitutionally extended over Indian country by mere force of a treaty, without legislative provisions. 5. Neither the provisions of article 1 in the treaty of 1868 with the Sioux, that "if bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indian, subject to the authority of the United States and at peace therewith, the Indians herein named solemnly agree that they will, upon proof made to their agent and notice by him, deliver up the wrong-doer to the United States, to be tried and punished according to its laws," nor any other provision in that act, nor the provision"i n article 8 of the agreement embodied in the act of February 28th, 1877, c. 72, 19 Stat. 256, that they "shall be subject to the laws of the United. States," nor any other provision in that agreement or act, operated to repeal the provision of Rev. Stat. %2 146, which excepts from the general jurisdiction of courts of the United States over offences committed in Indian country, "crimes committed by one Indian against the person or property of another Indian," and offences committed in Indian country by an Indian who has been punished by the local law of the tribe ; and offences where by treaty stipulations the exclusive jurisdiction over the same is or may be secured to the Indian tribes respectively. 6. The objects sought to be accomplished by the treaty of 1868 with the Sioux, and the humane purposes of Cbngress in the legislation of 1877, examined and shown to be inconsistent with the assumption of such a general jurisdiction by the courts of the United States. 7. The doctrine that courts do not favor repeals of statutes by implication reasserted and authorities referred to. Especially a court of limited and special jurisdiction should not take jurisdiction over a case involving human life, through an implied repeal of a statute denying it, when the words relied on are general and inconclusive: and the fact that to hold that a statute repeals by implication a previous act would reverse a well settled policy of Congress, justifies the courts in requiring a clear expression of the intention of Congress in the repealing act.

The petitioner is in the custody of the marshal of the United States for the territory of Dakota, imprisoned in the jail of Lawrence county, in the first judicial district of that territory, under sentence of death, adjudged against him by the district court for that district, to be carried into execution January 14, 1884. That judgment was rendered upon a conviction for the murder of an Indian of the Brule Sioux band of the Sioux nation of Indians, by the name of Sin-ta-ge-le-Scka, or in English, Spotted Tail, the prisoner also being an Indian of the same band and nation, and the homicide having occurred, as alleged in the indictment, in the Indian country, within a place and district of country under the exclusive jurisdiction of the United States and within the said judicial district. The judgment was affirmed on a writ of error, by the supreme court of the territory. It is claimed on behalf of the prisoner that the crime charged against him, and of which he stands convicted, is not an offense under the laws of the United States; that the district court had no jurisdiction to try him, and that its judgment and sentence are void. It therefore prays for a writ of habeas corpus, that he may be delivered from an imprisonment which he asserts to be illegal. The indictment is framed upon section 5339 of the Revised Statutes. That section is found in title 70, on the subject of crimes against the United States, and in chapter 3, which treats of crimes arising within the maritime and territorial jurisdiction of the United States. It provides that 'every person who commits murder, * * * within any fort, arsenal, dock-yard, magazine, or in any other place or district of country under the exclusive jurisdiction of the United States, * * * shall suffer death.' Title 28 of the Revised Statutes relates to Indians, and the sub-title of chapter 4 is, 'Government of Indian Country.' It embraces many provisions regulating the subject of intercourse and trade with the Indians in the Indian country, and imposes penalties and punishments for various violations of them. Section 2142 provides for the punishment of assaults with deadly weapons and intent, by Indians upon white persons, and by white persons upon Indians; section 2143, for the case of arson, in like cases; and section 2144 provides that 'the general laws of the United States defining and prescribing punishments for forgery and depredations upon the mails shall extend to the Indian country.' The next two sections are as follows: 'Sec. 2145. Except as to crimes, the punishment of which is expressly provided for in this title, the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country. 'Sec. 2146. The preceding section shall not be construed to extend to [crimes committed by one Indian against the person or property of another Indian, nor to] any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where by treaty stipulations the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.' That part of section 2146 placed within brackets was in the act of twenty-seventh March, 1854, c. 26, § 3, (10 St. 270,) was omitted by the re isers in the original Revision, and restored by the act of eighteenth February, 1875, c. 80, (18 St. 318,) and now appears in the second edition of the Revised Statutes. It is assumed for the purposes of this opinion that the omission in the original Revision was inadvertent, and that the restoration evinces no other intent on the part of congress than that the provision should be considered as in force, without interruption, and not a new enactment of it for any other purpose than to correct the error of the Revision. The district courts of the territory of Dakota are invested with the same jurisdiction in all cases arising under the laws of the United States as is vested in the circuit and district courts of the United States. Rev. St. §§ 1907-1910. The reservation of the Sioux Indians, lying within the exterior boundaries of the territory of Dakota, was defined by article 2 of the treaty concluded April 29, 1868, (15 St. 635,) and by section 1839 Rev. St., it is excepted out of and constitutes no part of that territory. The object of this exception is stated to be to exclude the jurisdiction of any state or territorial government over Indians within its exterior lines, without their consent, where their rights have been reserved and remain unextinguished by treaty. But the district courts of the territory having, by law, the jurisdiction of district and circuit courts of the United States, may, in that character, take cognizance of offenses against the laws of the United States, although committed within an Indian reservation, when the latter is situate within the space which is constituted by the authority of the territorial government the judicial district of such court. If the land reserved for the exclusive occupancy of Indians lies outside the exterior boundaries of any organized territorial government, it would require an act of congress to attach it to a judicial district, of which there are many instances, the latest being the act of January 6, 1883, by which a part of the Indian territory was attached to the district of Kansas and a part of the northern district of Texas. 22 St. 400. In the present case the Sioux reservation is within the geographical limits of the territory of Dakota, and being excepted out of it only in respect to the territorial government, the district court of that territory within the geographical boundaries of whose district it lies, may exercise jurisdiction under the laws of the United States over offenses made punishable by them, committed within its limits. U. S. v. Dawson, 15 How. 467; U. S. v. Jackalow, 1 Black, 484; U. S. v. Rogers, 4 How. 567; U. S. v. Alberty, Hemp. 444, opinion by Mr. Justice DANIEL; U. S. v. Starr, Id. 469; U. S. v. Ta-wan-ga-ca, Id. 304. The district court has two distinct jurisdictions. As a territorial court it administers the local law of the territorial government; as invested by act of congress with jurisdiction to administer the laws of the United States, in has all the authority of circuit and district courts; so that, in the former character, it may try a prisoner for murder committed in the territory proper, under the local law, which requires the jury to determine whether the punishment shall be death or imprisonment for life; (Laws Dak. 1883, c. 9;) and, in the other character, try another for a murder committed within the Indian reservation, under a law of the United States, which imposes, in case of conviction, the penalty of death. Section 2145 of the Revised Statutes extends the general laws of the United States as to the punishment of crimes committed in any place within their sole and exclusive jurisdiction, except the District of Columbia, to the Indian country, and it becomes necessary, therefore, to inquire whether the locality of the homicide, for which the prisoner was convicted of murder, is within that description. The first section of the Indian intercourse act of June 30, 1834, defines the Indian co ntry as follows: 'That all that part of the United States west of the Mississippi, and not within the states of Missouri and Louisana or the territory of Arkansas, and also that part of the United States east of the Mississippi river not within any state, to which the Indian title has not been extinguished, for the purposes of this act, be taken and be deemed to be the Indian country.' Since the passage of that act great changes have taken place by the acquisition of new territory, by the creation of new states, and by the organization of territorial governments, and the Revised Statutes, while retaining the substance of many important provisions of the act of 1834, with amendments and additions since made regulating intercourse with the Indian tribes, has, nevertheless, omitted all definition of what now must be taken to be 'the Indian country.' Nevertheless, although the section of the act of 1834 containing the definition of that date has been repealed, it is not to be regarded as if it had never been adopted, but may be referred to in connection with the provisions of its original context which remain in force, and may be considered in connection with the changes which have taken place in our situation, with a view of determining from time to time what must be regarded as Indian country, where it is spoken of in the statutes. It is an admitted rule in the interpretation of statutes that clauses which have been repealed may still be considered in construing the provisions that remain in force. BRAMWELL, L. J. in Atty. Gen. v. Lamplough, 3 Exch. Div. 223-227; Hardc. St. 217; Savings Bank v. Collector, 3 Wall. 495-513; Com. v. Bailey, 13 Allen, 541. This rule was applied in reference to the very question now under consideration in Bates v. Clark, 95 U. S. 204, decided at the October term, 1877. It was said in that case by Mr. Justice MILLER, delivering the opinion of the court, that 'it follows from this that all the country described by the act of 1834 as Indian country remains Indian country so long as the Indians retain their original title to the soil, and ceases to be Indian country whenever they lose that title, in the absence of any different provision by treaty or by act of congress.' In our opinion that definition now applies to all the country to which the Indian title has not been extinguished within the limits of the United States, even when not within a reservation expressly set apart for the exclusive occupancy of Indians, although much of it has been acquired since the passage of the act of 1834, and notwithstanding the formal definition in that act has been dropped from the statutes, excluding, however, any territory embraced within the exterior geographical limits of a state, not excepted from its jurisdiction by treaty or by statute at the time of its admission into the Union, but saving, even in respect to territory not thus excepted and actually in the exclusive occupancy of Indians, the authority of congress over it, under the constitutional power to regulate commerce with the Indian tribes, and under any treaty made in pursuance of it. U.S. v. McBratney, 104 U. S. 621. This definition, though not now expressed in the Revised Statutes, is implied in all those provisions, most of which were originally connected with it when first enacted, and which still refer to it. It would be otherwise impossible to explain these references, or give effect to many of the most important provisions of existing legislation for the government of Indian country. It follows that the locus in quo of the alleged offense is within Indian country over which, territorially, the district court of the first judicial district of Dakota, sitting with the authority of a circuit court of the United States, had jurisdiction. But if section 2145, Rev. St., extends the act of congress, section 5339, punishing murder, to the locality of the prisoner's offense, section 2146 expressly excepts from its operation 'crimes committed by one Indian against the person or property of another Indian;' an exception which includes the case of the prisoner, and which, if it is effective and in force, makes his conviction illegal and void. This brings us at once to the main question of jurisdiction, deemed by congress to be of such importance to the prisoner and the public as to justify a special appropriation for the payment of the expenses incurred on his behalf in presenting it for decision in this proceeding to this court. 22 St. p. 624, c. 143, March 3, 1883. The argument in support of the jurisdiction and conviction is, that the exception contained in section 2146, Rev. St., is repealed by the operation and legal effect of the treaty with the different tribes of the Sioux Indians of April 29, 1868, (15 St. 635;) and an act of congress, approved February 28, 1877, to ratify an agreement with certain bands of the Sioux Indians, etc. 19 St. 254. The following provisions of the treaty of 1868 are relied on: 'Article 1. From this time forward all war between the parties to this agreement shall forever cease. The government of the United States desires peace, and its honor is hereby pledged to keep it. The Indians desire peace, and they now pledge their honor to maintain it. 'If bad men among the whites, or among other people subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent and forwarded to the commissioner of Indian affairs at Washington city, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained. 'If bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indian, subject to the authority of the United States and at peace therewith, the Indians herein named solemnly agree that they will, upon proof made to their agent and notice by him, deliver up the wrong-doer to the United States, to be tried and punished according to its laws. And in case they wilfully refuse so to do, the person injured shall be reimbursed for his loss from the annuities or other moneys due or to become due to them under this or other treaties made with the United States. And the president, on advising with the commissioner of Indian affairs, shall prescribe rules and regulations for ascertaining damages under the provisions of this article as in his judgment may be proper. But no one sustaining loss while violating the provisions of this treaty or the laws of the United States shall be reimbursed therefor.' The second article defines the reservation, which, it is stipulated,—— 'Is set apart for the absolute and undisturbed use and occupation of the Indians herein named, and for such other friendly tribes or individual Indians as from time to time they may be willing, with the consent of the United States, to admit among them; and the United States now solemnly agrees that no person except those herein designated and authorized so to do, and except such officers, agents, and employes of the government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law, shall ever be permitted to pass over, settle upon, or reside in the territory described in this article.' * * * 'Article 5. The United States agrees that the agent for said Indians shall in future make his home at the agency building; that he shall reside among them, and keep an office open at all times for the purpose of prompt and diligent inquiry into such matters of complaint by and against the Indians as may be presented for investigation under their treaty stipulations, as also for the faithful discharge of other duties enjoined upon him by law. In all cases of depredation on person or property he shall cause evidence to be taken in writing and forwarded, together with his findings, to the commissioner of Indian affairs, whose decision, subject to the revision of the secretary of the interior, shall be binding on the parties to this treaty.' Other provisions of this treaty are intended to encourage the settlement of individuals and families upon separate agricultural reservations, and the education of children in schools to be established. The condition of the tribe, in point of civilization, is illustrated by stipulations on the part of the Indians, that they will not interfere with the construction of railroads on the plains or over their reservation, nor attack persons at home or traveling, nor disturb wagon trains, mules, or cattle belonging to the people of the United States, nor capture nor carry off white women or children from the settlements, nor kill nor scalp white men, nor attempt to do them harm. By the Indian appropriation act of August 15, 1876, congress appropriated $1,000,000 for the subsistence of the Sioux Indians, in accordance with the treaty of 1868, and 'for purposes of their civilization,' (19 St. 192,) but coupled it with certain conditions relative to a cession of a portion of the reservation, and with the proviso 'that no further appropriation for said Sioux Indians for subsistence shall hereafter be made until some stipulation, agreement, or arrangement shall have been entered into by said Indians with the president of the United States, which is calculated and designed to enable said Indians to become self-supporting.' In pursuance of that provision the agreement was made, which was ratified in part by the act of congress of February 28, 1877. The enactment of this agreement by statute, instead of its ratification as a treaty, was in pursuance of the policy which had been declared for the first time in a proviso to the Indian appropriation act of March 3, 1871, (16 St. 566 c. 120,) and permanently adopted in section 2079 of the Revised Statutes, that thereafter 'no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty,' but without invalidating or impairing the obligation of subsisting treaties. The instrument in which the agreement was embodied was signed by the commissioners, on the part of the United States, and by the representative chiefs and head men of the various Sioux tribes, but with certain exceptions on the part of some of the latter, and consisted of 11 articles. The first defines the boundaries of the reservation; the second provides for wagon roads through it to the country lying west of it, and for the free navigation of the Mississippi river; the third for the places where annuities shall be received. Article four was as follows: 'The government of the United States and the said Indians being mutually desirous that the latter shall be located in a country where they may eventually become self-supporting and acquire the arts of civilized life, it is therefore agreed that the said Indians shall select a delegation of five or more chiefs and principal men from each band, who shall, without delay, visit the Indian territory, under the guidance and protection of suitable persons, to be appointed for that purpose by the department of the interior, with a view to selecting therein a permanent home for the said Indians. If such delegation shall make a selection which shall be satisfactory to themselves, the people whom they represent, and to the United States, then the said Indians agree that they will remove to the country so selected within one year from this date. And the said Indians do further agree in all things to submit themselves to such beneficent plans as the government may provide for them in the selection of a country suitable for a permanent home, where they may live like white men.' The fifth article recites that, in consideration of the foregoing cession of territory and rights, the United States agrees 'to prov de all necessary aid to assist the said Indians in the work of civilization; to furnish to them schools, and instruction in mechanical and agricultural arts, as provided for by the treaty of 1868;' to provide subsistence, etc. Article 8 is as follows: 'The provisions of the said treaty of 1868, except as herein modified, shall continue in full force, and, with the provisions of this agreement, shall apply to any country which may hereafter be occupied by the said Indians as a home; and congress shall, by appropriate legislation, secure to them an orderly government; they shall be subject to the laws of the United States, and each individual shall be protected in his rights of property, person, and life. 'Art. 9. The Indians, parties to this agreement, do hereby solemnly pledge themselves, individually and collectively, to observe each and all of the stipulations herein contained; to select allotments of land as soon as possible after their removal to their permanent home, and to use their best efforts to learn to cultivate the same. And they do solemnly pledge themselves that they will, at all times, maintain peace with the citizens and government of the United States; that they will observe the laws thereof, and loyally endeavor to fulfill all the obligations assumed by them under the treaty of 1868 and the present agreement, and to this end will, whenever requested by the president of the United States, select so many suitable men from each band to co-operate with him in maintaining order and peace on the reservation as the president may deem necessary, who shall receive such compensation for their services as congress may provide.' By the eleventh and last article it was provided that the term 'reservation,' as therein used, should be held to apply to any country which should be selected under the authority of the United States as their future home. The fourth article and part of the sixth article of the agreement, which referred to the removal of the Indians to the Indian territory, were omitted from its ratification, not having been agreed to by the Indians. If this legislation has the effect contended for to support the conviction in the present case, it also makes punishable, when committed within the Indian country by one Indian against the person or property of another Indian, the following offenses, defined by the general laws of the United States as to crimes committed in places within their exclusive jurisdiction, viz.: Manslaughter, section 5341; attempt to commit murder or manslaughter, section 5342; rape, section 5345; mayhem, section 5348; bigamy, section 5352; larceny, section 5356; and receiving stolen goods, section 5357. That this legislation could constitutionally be extended to embrace Indians in the Indian country, by the mere force of a treaty, whenever it operates of itself, without the aid of any legislative provision, was decided by this court in the case of U.S. v. 43 Gallons of Whisky, 93 U. S. 188. See Holden v. Joy, 17 Wall. 211; The Cherokee Tobacco, 11 Wall. 616. It becomes necessary, therefore, to examine the particular provisions that are supposed to work this result. The first of these is contained in the first article of the treaty of 1868, that 'if bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indian, subject to the authority of the United States and at peace therewith, the Indians herein named solemnly agree that they will, upon proof made to their agent and notice by him, deliver up the wrong-doer to the United States, to be tried and punished according to its laws.' But it is quite clear from the context that this does not cover the present case of an alleged wrong committed by one Indian upon the person of another of the same tribe. The provision must be construed with its counterpart, just preceding it, which provides for the punishment by the United States of any bad men among the whites, or among other people subject to thei authority, who shall commit any wrong upon the person or property of the Indians. Here are two parties, among whom, respectively, there may be individuals guilty of a wrong against one of the other—one is the party of whites and their allies, the other is the tribe of Indians with whom the treaty is made. In each case the guilty party is to be tried and punished by the United States, and in case the offender is one of the Indians who are parties to the treaty, the agreement is that he shall be delivered up. In case of refusal, deduction is to be made from the annuities payable to the tribe, for compensation to the injured person. a provision which points quite distinctly to the conclusion that the injured person cannot himself be one of the same tribe. Similar provisions for the extradition of criminals are to be found in most of the treaties with Indian tribes, as far back, at least, as that concluded at Hopewell with the Cherokees, November 28, 1785. 7 St. 18. The second of these provisions, that are supposed to justify the jurisdiction asserted in the present case, is the eighth article of the agreement, embodied in the act of 1877, in which it is declared: 'And congress shall, by appropriate legislation, secure to them an orderly government; they shall be subject to the laws of the United States, and each individual shall be protected in his rights of property, person, and life.' It is equally clear, in our opinion, that these words can have no such effect as that claimed for them. The pledge to secure to these people, with whom the United States was contracting as a distinct political body, an orderly government, by appropriate legislation thereafter to be framed and enacted, necessarily implies, having regard to all the circumstances attending the transaction, that among the arts of civilized life, which it was the very purpose of all these arrangements to introduce and naturalize among them, was the highest and best of all,—that of self-government, the regulation by themselves of their own domestic affairs, the maintenance of order and peace among their own members by the administration of their own laws and customs. They were nevertheless to be subject to the laws of the United States, not in the sense of citizens, but, as they had always been, as wards, subject to a guardian; not as individuals, constituted members of the political community of the United States, with a voice in the selection of representatives and the framing of the laws, but as a dependent community who were in a state of pupilage, advancing from the condition of a savage tribe to that of a people who, through the discipline of labor, and by education, it was hoped might become a self-supporting and self-governed society. The laws to which they were declared to be subject were the laws then existing, and which applied to them as Indians, and, of course, included the very statute under consideration, which excepted from the operation of the general laws of the United States, otherwise applicable, the very case of the prisoner. Declaring them subject to the laws made them so, if it effected any change in their situation, only in respect to laws in force and as existing, and did not effect any change in the laws themselves. The phrase cannot, we think, have any more extensive meaning than an acknowledgement of their allegiance, as Indians, to the laws of the United States, made or to be made in the exercise of legislative authority over them as such. The corresponding obligation of protection on the part of the government is immediately connected with it, in the declaration that each individual shall be protected in his rights of property, person, and life, and that obligation was to be fulfilled by the enforcement of the laws then existing appropriate to those objects, and by that future appropriate legislation which was promised to secure to them an orderly government. The expressions contained in these clauses must be taken in connection with the en ire scheme of the agreement as framed, including those parts not finally adopted, as throwing light on the meaning of the remainder; and looking at the purpose, so clearly disclosed in that, of the removal of the whole body of the Sioux nation to the Indian territory proper, which was not consented to, it is manifest that the provisions had reference to their establishment as a people upon a defined reservation as a permanent home, who were to be urged, as far as it could successfully be done, into the practice of agriculture, and whose children were to be taught the arts and industry of civilized life, and that it was no part of the design to treat the individuals as separately responsible and amenable, in all their personal and domestic relations with each other, to the general laws of the United States, outside of those which were enacted expressly with reference to them as members of an Indian tribe. It must be remembered that the question before us is whether the express letter of section 2146 of the Revised Statutes, which excludes from the jurisdiction of the United States the case of a crime committed in the Indian country by one Indian against the person or property of another Indian, has been repealed. If not, it is in force and applies to the present case. The treaty of 1868 and the agreement and act of congress of 1877, it is admitted, do not repeal it by any express words. What we have said is sufficient at least to show that they do not work a repeal by necessary implication. A meaning can be given to the legislation in question, which the words will bear, which is not unreasonable, which is not inconsistent with its scope and apparent purposes, whereby the whole may be made to stand. Implied repeals are not favored. The implication must be necessary. There must be a positive repugnancy between the provisions of the new laws and those of the old. Wood v. U. S. 16 Pet. 342; Daviess v. Fairbairn, 3 How. 636; U. S. v. Tynen, 11 Wall. 88; State v. Stoll, 17 Wall. 425. The language of the exception is special and express; the words relied on as a repeal are general and inconclusive. The rule is, generalia specialibus non derogant. 'The general principle to be applied,' said BOVILL, C. J., in Thorpe v. Adams, L. R. 6 C. P. 135, 'to the construction of acts of parliament is that a general act is not to be construed to repeal a previous particular act, unless there is some express reference to the previous legislation on the subject, or unless there is a necessary inconsistency in the two acts standing together.' 'And the reason is,' said Wood, V. C., in Fitzgerald v. Champneys, 30 Law J. Ch. 782; 2 Johns. & H. 31-54, 'that the legislature having had its attention directed to a special subject, and having observed all the circumstances of the case and provided for them, does not intent, by a general enactment afterwards, to derogate from its own act when it makes no special mention of its intention so to do.' The nature and circumstances of this case strongly reinforce this rule of interpretation in its present application. It is a case involving the judgment of a court of special and limited jurisdiction, not to be assumed without clear warrant of law. It is a case of life and death. It is a case where, against an express exception in the law itself, that law, by argument and inference only, is sought to be extended over aliens and strangers; over the members of a community, separated by race, by tradition, by the instincts of a free though savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code, and to subject them to the responsibilities of civil conduct, according to rules and penalties of which they could have no previous warning; which judges them by a standard made by others, and not for them, which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inab lity to understand it. It tries them not by their peers, nor by the customs of their people, nor the law of their land, but by superiors of a different race, according to the law of a social state of which they have an imperfect conception, and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red man's revenge by the maxims of the white man's morality. It is a case, too, of first impression, so far as we are advised; for, if the question has been mooted heretofore in any courts of the United States, the jurisdiction has never before been practically asserted as in the present instance. The provisions now contained in sections 2145 and 2146 of the Revised Statutes were first enacted in section 25 of the Indian intercourse act of 1834. 4 St. 733. Prior to that, by the act of 1796, (1 St. 469,) and the act of 1802, (2 St. 139,) offenses committed by Indians against white persons, and by white persons against Indians, were specifically enumerated and defined, and those by Indians against each other were left to be dealt with by each tribe for itself, according to its local customs. The policy of the government in that respect has been uniform. As was said by Mr. Justice MILLER, delivering the opinion of the court in U. S. v. Joseph, 94 U. S. 614, 617: 'The tribes for whom the act of 1854 was made were those semi-independent tribes whom our government has always recognized as exempt from our laws, whether within or wilthout the limits of an organized state or territory, and, in regard to their domestic government, left to their own rules and traditions, in whom we have recognized the capacity to make treaties, and with whom the governments, state and national, deal, with a few exceptions only, in their national or tribal character, and not as individuals.' To give to the clauses in the treaty of 1868 and the agreement of 1877 effect, so as to uphold the jurisdiction exercised in this case, would be to reverse in this instance the general policy of the government towards the Indians, as declared in many statutes and treaties, and recognized in many decisions of this court, from the beginning to the present time. To justify such a departure, in such a case, requires a clear expression of the intention of congress, and that we have not been able to find. It results that the first district court of Dakota was without jurisdiction to find or try the indictment against the prisoner; that the conviction and sentence are void, and that his imprisonment is illegal. The writs of habeas corpus and certiorari prayed for will accordingly be issued.

109.US.1

Application being made to open the judgment in this case in order to enable the court to consider the case of Traverv. H3ferri k County, decided by the Supreme Court of Nebraska, and the court now-having considered it : Beld, that that cae is an authority ins upport of the former ruling of this court in this ease.

This case was decided at the last term of this court, and is reported in 106 U. S. 181; [S. C. 1 SUP. CT. REP. 168.] We there held that a steam grist-mill was not a work of internal improvement, within the meaning of the statute of Nebraska, approved February 15, 1869, authorizing counties, cities, and precincts of organized counties 'to issue bonds to aid in the construction of any railroad or other work of internal improvement.' It was also said that the court was not justified by anything in Township of Burlington v. Beasley, 94 U. S. 310, or in the decisions of the courts of Nebraska, 'in holding that a steam or other kind of grist-mill is of the class of internal improvements which municipal townships in that state are empowered, by the statute in question, to aid by an issue of bonds.' A petition for rehearing was filed near the close of the last term, calling our attention to the fact that the supreme court of Nebraska had then recently decided that a grist-mill operated by water-power was a work of internal improvement within the meaning of the before-mentioned statute. The judgment was suspended in order that appellee might have an opportunity of presenting the full text of the opinion of the state court. That has been done at the present term. The case to which reference is made is made is Traver v. Merrick Co. 5 N. W. Rep. 690, the opinion in which was not filed in the state court until after the close of our last term. It is quite true, as claimed by counsel for appellee, that the state court does, in that case, rule that a water grist-mill is a work of internal improvement within the meaning of the statute in question. But the court takes care to say: 'In our view there is a clear distinction between aiding the development of the water-power of the state—a power that is continuing in its nature and may be used without cost or expense, and must be used at certain points on a stream where a dam can be erected and power obtained—and a mill propelled by steam, that must be attended with a continuous cost for fuel, and may at any time be moved to another locality.' So far from the decision of the state court furnishing any ground for a rehearing, it is an authority in support of that construction of the act of 1867 which excludes steam grist-mills from the class of internal improvements in aid of which counties, cities, and precincts of organized counties are, by the statute, authorized to issue their bonds. The rehearing is denied.

109.US.550

A demurrer admits all facts well pleaded. Under the Colorado Code of Civil Procedure, as at common law, facts may be pleaded a~cording to their legal effect, without setting out the particulars that lead to it; and necessary circunstances implied by law need not be expressed in the plea. Ih an action by the patentee of a placer claim to recover possession of a vein or lode within its boundaries, an answer alleging that the vein or lode was known to the patentee to exist at the time of applying for the patent, and was not included in his applicaiion, well pleads the fact which, under § 233 of the Revised Statutes, precludes him from having any right of' possession of the vein or lode.

This action was brought by the Iron Silver Mining Company, owning a tract of land or mining claim known as the Wells & Moyer placer claim, described by metes and bounds in the complaint, against Sullivan and others, to recover possession of part of the tract, likewise described, from which it had been ousted by the defendants. The answer originally filed was demurred to, and the demurrer sustained. The defendants thereupon, by leave of the court, filed an amended answer, alleging that on the eleventh of March, 1879, the United States issued to Wells & Moyer, the grantors of the plaintiff, for the premises described in the complaint, and known as No. 281, upon the application for and entry of the premises as the Wells & Moyer placer claim, a placer patent, or patent of and for a placer mining claim, containing the following restrictions and exceptions: 'First. That the grant hereby made is restricted in its exterior limits to the boundaries of the said lot No. 281, as hereinbefore described, and to any veins or lodes of quartz, or other rock in place, bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, which may hereafter be discovered within said limits, and situate, and not claimed or known to exist, at the date hereof. 'Second. That should any vein or lode of quartz, or other rock in place, bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, be claimed or known to exist within the above-described premises at the date hereof, the same is expressly excepted and excluded from these presents.' The amended answer also alleged 'that at the time of the location of said placer claim, and the survey thereof, and at the time of the application for said patent, and at the time of the entry of said land thereunder, and at the time and date of the issuing and granting of said patent, a lode, vein, or deposit of mineral ore in rock in place, carrying carbonates of lead and silver, and of great value, was known to exist, and was claimed to exist, within the boundaries and underneath the surface of said Wells & Moyer placer claim No. 281; and that the fact that said vein was claimed to exist, and did exist as aforesaid within said premises, was known to the patentees of said claim at all the times hereinbefore mentioned;' and 'that the said application for said patent by said patentees and grantors of said plaintiff did not include any application whatever for a patent of or to said lode or vein within its boundaries aforesaid. Wherefore these defendants aver that the said failure to include said vein or lode in said application amounted to a conclusive declaration by said patentees that they made no claim whatever to said lode or vein, or any part thereof, and that the same was expressly excepted and excluded from, and did not pass with, the grant of said premises in and by said patent for said premises.' The amended answer further alleged that on the first of January, 1883, the defendants, then and now being citizens of the United States, went upon the premises last described in the complaint, and sunk a shaft thereon, which uncovered and exposed said lode, vein, or deposit; and thereupon proceeded to and did locate the same as a lode claim, by erecting a notice containing the name of the lode, the date of the location, and their own names as locators, and marked the surface boundaries by posts; and afterwards caused to be filed a location certificate containing the name of the lode, the names of the locators, the date of the location, the number of feet in length claimed on each side of the center of the discovery shaft, and the general course and direction of said claim as near as might be. 'Wherefore the defendants claim the right to occupy and possess the said premises in full accordance with and by virtue of a full compliance with the requirements of the laws of the United States, and of the state of Colorado, the said vein, lode, or deposit being a part and parcel of the unappropriated public mineral domain of the United States; and that the acts and doings of the defendants as hereinbefore set forth constitute the said supposed trespass complained of by the plaintiff.' The plaintiff demurred to the amended answer, because neither of its allegations set forth any defense; because it showed that neither the defendants nor their grantors had duly discovered, located, or recorded any lode or vein such as is described in section 2320 of the Revised Statutes, at or before the time of the application for the placer patent, but that the defendants located their lode claim within the boundaries of the patented ground after the issuing of the placer patent; and because the applicants for the placer patent were not required to apply for the vein or lode claim, unless it had been duly discovered, located, and recorded, and was owned by the applicants for the placer patent at the time of applying for the patent. The circuit court sustained the demurrer to the amended answer, and gave judgment for the plaintiff, and the defendants sued out this writ of error. The question in this case arises under section 2333 of the Revised Statutes, the different provisions of which will be more clearly distinguished from each other, without affecting the meaning of either, by separating them by periods, as follows: 'Sec. 2333. Where the same person, association, or corporation is in possession of a placer claim, and also a vein or lode included within the boundaries thereof, application shall be made for a patent for the placer claim with the statement that it includes such vein or lode, and in such case a patent shall issue for the placer claim, subject to the provisions of this chapter, including such vein or lode, upon the payment of five dollars per acre for such vein or lode claim, and twenty-five feet of surface on each side thereof. The remainder of the placer claim, or any placer claim not embracing any vein or lode claim, shall be paid for at the rate of two dollars and fifty cents per acre, together with all costs of proceedings. And where a vein or lode, such as is described in section twenty-three hundred and twenty, is known to exist within the boundaries of a placer claim, an application for a patent for such placer claim which does not include an application for the vein or lode claim shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim. But where the existence of the vein or lode in a placer claim is not known, a patent for the placer claim shall convey all valuable mineral and other deposits within the boundaries thereof.' The section referred to in the third subdivision of this section is as follow: 'Sec. 2320. Mining claims upon veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, heretofore located, shall be governed as to length along the vein or lode by the customs, regulations, and laws in force at the date of their location. A mining claim located after the tenth day of May, eighteen hundred and seventy-two, whether located by one or more persons, may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode; but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located. No claim shall extend more than three hundred feet on each side of the middle of the vein at the surface, nor shall any claim be limited by any mining regulation to less than twenty-five feet on each side of the middle of the vein at the surface, except where adverse rights existing on the tenth day of May, eighteen hundreed and seventy-two, render such limitation necessary. The end lines of each claim shall be parallel to each other.' The counsel of both parties, in their arguments, have discussed the question whether a vein or lode included within the boundaries of a placer claim, the application for which does not include an application for the vein or lode claim, is excepted out of the patent for the placer claim, if at the time of the application it is known to the applicant to exist, but no claim to the vein or lode has been located. In accordance with the view expressed by the circuit court in the opinion delivered on sustaining the demurrer to the original answer, and reported in 16 Fed. Rep. 829, the defendants in error maintain that by virtue of section 2333, taken in connection with section 2320 therein referred to, a vein or lode within the boundaries of a placer claim is not excepted from a patent for the placer claim, unless a claim for the vein or lode had previously been located according to section 2320. The plaintiffs in error contend that if the existence of the vein or lode is known to the applicant for a placer claim, he must include, in his application for the placer claim, an application for the vein or lode claim, and pay for the latter at the higher rate, in order to obtain any title to it. The circuit court treated the question of the construction of this statute as one of much difficulty and of some doubt, and as affecting numerous cases. This court should not express an opinion upon it, unless its determination is necessarily involved in the adjudication of the case at bar. We are of opinion that the question is not presented for adjudication upon the record before us. The amended answer alleges that at the times of the location and survey of, entry upon, and application and patent for, the placer claim, the lode or vein was known to exist, and was claimed to exist, within the boundaries and underneath the surface of the placer claim, and the fact that the vein was claimed to exist and did exist within the premises was known to the patentees of that claim. The phrase 'claimed to exist,' as used in the amended answer, apparently intending to follow the form of patent therein set forth, is not indeed a statement that a claim for the vein or lode had been in due form made and located, but only that it was contended that the vein or lode existed. But the further allegation in the answer, that the vein was known by the patentees to exist at the times mentioned, is an allegation, in the very words of the statute itself, of the fact which the statute declares shall be conclusive against any right of possession of the vein or lode claim in a claimant of the placer claim only. Whether the words 'known to exist,' as used in the statute, are satisfied by actual knowledge of the applicant, or imply also a located claim for the vein or lode, the same meaning must be attributed to them in the amended answer; and and the fact signified by the statute is well pleaded; for, by the elementary rules of pleading, facts may be pleaded according to their legal effect, without setting forth the particulars that lead to it; and necessary circumstances implied by law need not be expressed in the plea. Bac. Abr. 'Pleas & Pleading, I,' 7; Co. Litt. 303b. The fact that the vein or lode was known to exist as contemplated by the statute being well pleaded, although in general terms, is admitted by the demurrer. Eaton v. Southby, Willes, 131; Postmaster Gen. v. Ustick, 4 Wash. C. C. 347; Christmas v. Russell, 5 Wall. 290. In order to present the issue discussed in argument, the plaintiff should either have traversed the allegation, or have replied that no claim for the vein or lode had been located at the time in question. We find nothing in the statutes of Colorado which changes the rules of the common law in this respect. See Colo. Code Civil Proc. 1877, §§ 48, 49, 52, 61. The judgment must therefore be reversed, and the case remanded to the circuit court, with liberty to either party to move in that court to amend the pleadings.

107.US.319

This court has no jurisdiction to re-examine the judgment of a State court recognizing as valid the decree of a foreign court annulling a marriage.

The only question is this case controverted below was whether Madelaine Roth, the plaintiff in error, was the widow of John George Roth, deceased, and that depended entirely on the validity of the decree of the royal matrimonial court of Elwangen, in the kingdom of Wurtemburg, annulling the marriage of the parties. The supreme court of Illinois decided in favor of the validity of the Wurtemburg decree, and consequently that the plaintiff in error was not the widow of the decedent and not entitled to dower in his estate, or to inheritance under the laws of Illinois. This presents no question of which we can take cognizance under section 709 of the Revised Statutes. No right, title, privilege, or immunity which could be claimed under the authority of the United States was involved, and the validity of no treaty or statute of, or any authority exercised under, the United States was drawn in question. Neither was there any statute or authority of the state relied on which was in conflict with the constitution, treaties, or laws of the United States. The motion to dismiss for want of jurisdiction is granted.

107.US.519

1. In a suit against a municipal corporation to recover damages for injuries received from a fall caused by a defective sidewalk, which was in an unguarded condition, it is competent for the plaintiff to show that whilst it was in that condition other like accidents had occurred at the same place. 2. A person affected with insanity is admissible as a witness, if it appears to the court, upon examining him and competent witnesses, that he has sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue.

This was an action to recover damages for injuries received by the plaintiff's intestate, Du Bose, from a fall caused by a defective sidewalk in the city of Washington. In 1873 the board of public works of the city caused the grade of the carriage-way of Thirteenth street, between F and G streets, to be lowered several feet. The distance between the curbstone of the carriage-way and the line of the adjacent building was 36 feet. At the time the accident to the deceased occurred, this portion of the street sidewalk it may be termed, to designate it from the carriage-way, although only a part of it is given up to foot passengers—was, for 48 feet north of F street, lowered in its whole width to the same grade as the carriage-way. But, for some distance beyond that point, only 12 feet of the sidewalk was cut down, thus leaving an abrupt descent of about 2 feet at a distance of 12 feet from the curb. At this decent—from the elevated to the lowered part of the sidewalk—there were 3 steps, but the place was not guarded either at its side or end. Nothing was placed to warn foot passengers of the danger. On the night of February 21, 1877, Du Bose, a contract surgeon of the United States army, while walking down Thirteenth street, towards F street, fell down this descent, and, striking upon his knees, received a concussion which injured his spine and produced partial paralysis, resulting in the impairment of his mind and ultimately in his death, which occurred since the trial below. The present action was for the injury thus sustained. He was himself a witness, and it appeared from his testimony that his mind was feeble. His statement was not always as direct and clear as would be expected from a man in the full vigor of his mind. Still it was not incoherent, nor unintelligibel, but evinced a full knowledge of the matters in relation to which he was testifying. A physician of the government hospital for the insane, to which the deceased was taken two years afterwards, testified that he was affected with acute melancholy; that sometimes it was impossible to get a word from him; that his memory was impaired, but that he was able to make a substantially correct statement of facts which transpired before the injury took place, though, from the impairment of his memory, he might leave out some important part; that there would be some confusion of ideas in his mind; and that he should not be held responsible for any criminal act. A physician of the Freedmen's hospital, in which the deceased was at one time a patient after his injuries, testified to a more deranged condition of his mind, and that he was, when there in June, 1879, insane. He had attempted to commit suicide, and had stuck a fork into his neck several times. Upon this, and other testimony of similar import, and the feebleness exhibited by the deceased on the stand, the counsel for the city requested the court to withdraw his testimony from the jury, on the ground that his mental faculties were so far impaired as to render him incompetent to testify as a witness. This the court refused to do, but instructed the jury that his testimony must be taken with some allowance, considering his condition of mind and his incapacity to remember all the circumstances which might throw some light on his present condition. This refusal and ruling of the court constitute the first error assigned. The ruling of the court and its instruction to the jury were entirely correct. It is undoubtedly true that a lunatic or insane person may, from the condition of his mind, not be a competent witness. His incompetency on that ground, like incompetency for any other cause, must be passed upon by the court, and to aid its judgment evidence of his condition is admissible. But lunacy or insanity assumes so many forms, and is so often partial in its extent, being frequently confined to particular subjects, while there is full intelligence on others, that the power of the court is to be exercised with the greatest caution. The books are full of cases where persons showing mental derangement on some subjects evince a high degree of intelligence and wisdom on others. The existence of partial insanity does not unfit individuals so affected for the transaction of business on all subjects, nor from giving a perfectly accurate and lucid statement of what they have seen or heard. In a case in the prerogative court of Canterbury, counsel stated that partial insanity was unknown to the law of England; but the court replied that if by this was meant that the law never deems a person both sane and insane at one and the same time, upon one and the same subject, the assertion was a truism; and added: 'If, by that position, it be meant and intended that the law of England never deems a party both sane and insane at different times upon the same subject, and both sane and insane at the same time upon different subjects, there can scarcely be a position more destitute of legal foundation; or, rather, there can scarcely be one more adverse to the stream and current of legal authority.' Dew v. Clark, 3 Add. Ecc. 79, 94. The general rule, therefore, is that a lunatic or a person affected with insanity is admissible as a witness if he have sufficient understanding to apprehend to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue; and whether he have that understanding is a question to be determined by the court, upon examination of the party himself, and any competent witnesses who can speak to the nature and extent of his insanity. Such was the decision of the court of criminal appeal in England, in the case of Reg. v. Hill, 5 Cox, Crim. Cas. 259. There the prisoner had been convicted of manslaughter; and on the trial a witness had been admitted whose incompetency was urged on the ground of alleged insanity. He was a patient in a lunatic asylum, under the delusion that he had a number of spirits about him which were continually talking to him, but the medical superintendent testified that he was capable of giving an account of any transaction that happened before his eyes; that he had always found him so; and that it was solely with reference to the delusion about the spirits that he considered him a lunatic. The witness himself was called, and he testified as follows: 'I am fully aware I have a spirit, and 20,000 of them. They are not all mine. I must inquire. I can where I am. I know which are mine. Those that ascend from my stomach and my head, and also those in my ears. I don't know how many they are. The flesh creates spirits by the palpitation of the nerves and the rheumatics. All are now in my body and around my head. They speak to me incessantly. particularly at night. That spirits are immortal, I am taught by my religion from my childhood. No matter how faith goes, all live after my death, those that belong to me and those that do not.' After much more of this kind of talk he added: 'They speak to me instantly; they are speaking to me now; they are not separate from me; they are around me speaking to me now; but I can't be a spirit, for I am flesh and blood. They can go in and out through walls and places which I cannot.' He also stated his opinion of what it was to take an oath: 'When I swear,' he said, 'I appeal to the Almighty. It is perjury, the breaking of a lawful oath, or taking an unlawful one; he that does it will go to hell for all eternity.' He was then sworn, and gave a perfectly collected and rational account of a transaction which he declared that he had witnessed. He was in some doubt as to the day of the week on which it took place, and on cross-examination said: 'These creatures insist upon it, it was Tuesday night, and I think it was Moday;' whereupon he was asked: 'Is what you have told us, what the spirits told you, or what you recollected without the spirits?' And he said: 'No; the spirits assist me in speaking of the date; I thought it was Monday, and they told me it was Christmas eve, Tuesday; but I was an eye-witness, an ocular witness, to the fall to the ground.' The question was reserved for the opinion of the court whether this witness was competent, and after a very elaborate discussion of the subject it was held that he was. Chief Justice CAMPBELL said that he entertained no doubt that the rule laid down by Baron PARKE, in an unreported case which had been referred to, was correct, that wherever a delusion of an insane character exists in any person who is called as a witness, it is for the judge to determine whether the person so called has a sufficient sense of religion in his mind and a sufficient understanding of the nature of an oath, and it is for the jury to decide what amount of credit they will give to his testimony. 'Various authorities,' said the chief justice, 'have been referred to, which lay down the law that a person non compos mentis is not an admissible witness; but in what sense is the expression non compos mentis employed? If a person be so to such an extent as not to understand the nature of an oath, he is not admissible. But a person subject to a considerable amount of insane delusion may yet be under the sanction of an oath, and capable of giving very material evidence upon the subject-matter under consideration.' And the chief justice added: 'The proper test must always be, does the lunatic understand what he is saying; and does he understand the obligations of an oath? The lunatic may be examined himself, that his state of mind may be discovered, and witnesses may be adduced to show in what state of sanity or insanity he actually is; still, if he can stand the test proposed, the jury must determine all the rest.' He also observed that in a lunatic asylum the patients are often the only witnesses of outrages upon themselves and others, and there would be impunity for offenses committed in such places if the only persons who can give information are not to be heard. Baron ALDERSON, Justice COLERIDGE, Baron PLATT, and Justice TALFOURD agreed with the chief justice, the latter observing that 'if the proposition that a person suffering under an insane delusion cannot be a witness were maintained to the fullest extent, every man subject to the most innocent, unreal fancy would be excluded. Martin Luther believed that he had a personal conflict with the devil. Dr. Johnson was persuaded that he had heard his mother speak to him after death. In every case the judge must determine according to the circumstances and extent of the delusion. Unless judgment and discrimination be applied to each particular case, there may be the most disastrous consequences.' This case is also found in Denison & P. Cr. Cas. 254, where Lord CAMPBELL is reported to have said that the rule contended for would have excluded the testimony of Socrates, for he had one spirit always prompting him. The doctrine of this decision has not been overruled, that we are aware of, and it entirely disposes of the question raised here. On the trial, a member of the Metropolitan police, who saw the deceased fall on the sidewalk and went to his assistance, was asked, after testifying to the accident, whether, while he was on his beat, other accidents had happened at that place. The court allowed the question, against the objection of the city's counsel, for the purpose of showing the condition of the street, and the liability of other persons to fall there. The witness answered that he had seen persons stumble over there. He remembered sending home in a hack a woman who had fallen there, and had seen as many as five persons fall there. The admission of this testimony is now urged as error, the point of the objection being that it tended to introduce collateral issues and thus mislead the jury from the matter directly in controversy. Were such the case the objection would be tenable, but no dispute was made as to these accidents, no question was raised as to the extent of the injuries received, no point was made upon them, no recovery was sought by reason of them, nor any increase of damages. They were proved simply as circumstances which, with other evidence, tended to show the dangerous character of the sidewalk in its unguarded condition. The frequency of accidents at a particular place would seem to be good evidence of its dangerous character—at least, it is some evidence to that effect. Persons are not wont to seek such places, and do not willingly fall into them. Here the character of the place was one of the subjects of inquiry to which attention was called by the nature of the action and the pleadings, and the defendant should have been prepared to show its real character in the face of any proof bearing on that subject. Besides this, as publicity was necessarily given to the accidents, they also tended to show that the dangerous character of the locality was brought to the attention of the city authorities. In Quinlan v. City of Utica, 11 Hun, 217, which was before the supreme court of New York, in an action to recover damages for injuries sustained by the plaintiff through the neglect of the city to repair its sidewalk, he was allowed to show that while it was out of repair other persons had slipped and fallen on the walk where he was in jured. It was objected that the testimony presented new issues which the defendant could not be prepared to meet, but the court said: 'In one sense every item of testimony material to the main issue introduces a new issue; that is to say, it calls for a reply. In no other sense did the testimony in question make a new issue. Its only importance was that it bore upon the main issue, and all legitimate testimony bearing upon that issue, the defendant was required to be prepared for.' This case was affirmed by the court of appeals of New York, all the judges concurring, except one, who was absent. 74 N. Y. 603. In an action against the city of Chicago, to recover damages resulting from the death of a person who in the night stepped off an approach to a bridge while it was swinging around to enable a vessel to pass, and was drowned,—it being alleged that the accident happened by reason of the neglect of the city to supply sufficient lights to enable persons to avoid such dangers,—the supreme court of Illinois held that it was competent for the plaintiff to prove that another person had, under the same circumstances, met with a similar accident. City of Chicago v. Powers, 42 Ill. 169. To the objection that the evidence was inadmissible, the court said: 'The action was based upon the negligence of the city in failing to keep the bridge properly lighted. If another person had met with a similar fate at the same place, and from a like cause, it would tend to show a knowledge on the part of the city that there was inattention on the part of their agents having charge of the bridge, and that they had failed to provide proper means for the protection of persons crossing on the bridge. As it tended to prove this fact it was admissible; and if the appellants had desired to guard against its improper application by the jury, they should have asked an instruction limiting it to its legitimate purpose.' Other cases to the same general purport might be cited. See City of Augusta v. Hafers, 61 Ga. 48; House v. Metcalf, 27 Conn. 630; Calkins v. City of Hartford, 33 Conn. 57; Darling v. Westmoreland, 52 N. H. 401; Hill v. Portland & R. R. Co. 55 Me. 439; Kent v. Town of Lincoln, 32 Vt. 591; City of Delphi v. Lowery, 74 Ind. 520. The above, however, are sufficient to sustain the action of the court below in admitting the testimony to which objection was taken. Judgment affirmed.

109.US.230

rhen a claim presented for proof in bankruptcy as a debt against the bankrupt's estate is rejected by the district court, an appeal from the decision to'the circuit court is incomplete and invalid, if the appellant fails to give to the assignee the [notice thereof which the statute requires, within *ten days after the decision--even though such notice may have been given to the objecting creditor.

James C. Mead, in his life-time, filed with a register in bankruptcy proof of his claim against the estate of Abraham Mead, a bankrupt. Mary E. Travis, a creditor of the bankrupt, applied for a re-examination, and, upon consideration, the claim was rejected by the district court. Pending the proceedings James C. Mead died, and the petitioner, his executrix, appeared in his stead. After the rejection of the claim the executrix took an appeal to the circuit court, and did all that was necessary to perfect such an appeal, except giving notice to the assignee within 10 days after the entry of the decision. This she did not do, but she did give notice to the objecting creditor within the prescribed time. The circuit court, on the application of the assignee, refused to entertain the appeal because of the failure of notice to him. The petitioner now seeks by mandamus to require the circuit court to take the case and proceed therewith. By section 4980 of the Revised Statutes 'appeals may be taken from the district to the circuit courts in all cases in equity' arising under the bankrupt act; * * * 'and any supposed creditor, whose claim is wholly or in part rejected, or an assignee who is dissatisfied with the allowance of a claim, may appeal from the district court to the circuit court for the same district;' but by section 4981 no such appeal can be allowed, unless, among other things, notice thereof be give 'to the assignee or creditor, as the case may be, or to the defeated party in equity, within 10 days after the entry of the decree or decision appealed from.' If a supposed creditor takes an appeal from an order rejecting his claim he must, under the provisions of section 4984, file in the clerk's office of the circuit court 'a statement in writing of his claim, setting forth the same, substantially, as in a declaration for the same cause of action at law, and the assignee shall plead or answer thereto in like manner, and like proceedings shall be thereupon had in the pleadings, trial, and determination of the cause, as in actions at law commenced and prosecuted in the usual manner in the courts of the United States.' In Wood v. Bailey, 21 Wall. 640, it was decided that the omission to give notice to an assignee of an appeal from a decree in his favor in a suit in equity was fatal to the appeal. The effect of the ruling in that case is that the statute makes the notice within the prescribed time 'a condition of the right of appeal' under section 4980. That seems to us conclusive of the present case. Proceedings under section 5081 for the re-examination of a claim filed against a bankrupt's estate are in the nature of a suit against the assignee for the establishment of the claim. A creditor may move for the re-examination, and, under general order in bankruptcy No. 34, may be required to form the issue which is to be certified to the district court for determination, but the assignee alone can appeal from an order of allowance; and if the supposed creditor appeals, the assignee must defend in the circuit court, where the proceedings are against him. Hence the necessity for notice to him in such cases; and, in our opinion, the words 'to the assignee or creditor, as the case may be,' in section 4981, mean to the assignee if the appeal is by the supposed creditor, and to the supposed creditor if it is by the assignee. As upon the petitioner's own showing the circuit court properly refused to entertain his appeal, the rule asked for is denied and the petition dismissed.

109.US.578

S.Proceedings in the district court of the United States under the act of 1851, 9 Stat. .635, to limit the liability of ship owners for loss or damage to goods, supersede all other actions and suits for the same loss or damage in the State or federal courts, upon the matter being properly pleaded therein. 2. The effect of such proceedings in superseding other actions and suits does n1t depend upon the award of an injunction by the district court, but upon the object and intrinsic character of the proceedings themselves, and the express language of thd act of Congress. 3. The power of Congress to pass the act of 1851, and of this court to prescribe thie rules adopted in December term, 1871, for regulating proceedings under the act, reaffirmed. 4. Loss and damage by fire on board of a ship are within the rdIief of the 3d, as well as the 1st, section of the act. 5. Goods transported by steamer from Providence to New York were injured by fire on board the vessel at her dock in the latter place, and suits for damage were commenced against the owners of the steamer in New York ae nd Boston ; thereupon proceedings were instituted by such owners in the district court of the United States for New York, under the act of 1851, to limit tieir liability: HelZd, that said proceedings, properly pleaded and verified, superseded the actions in other courts, and that it was error to proceed further therein.

The writ of error in this case brings up for consideration a judgment of the supreme judicial court of Massachusetts rendered in an action brought by The Hill Manufacturing Company against the Providence & New York Steamship Company as common carriers, to recover damages for the loss of certain goods delivered by the plaintiffs to the defendants at Providence, Rhode Island, to be transported to the city of New York; which goods, it is alleged, were, by the negligence of the defendants, burned and injured by fire. The loss is stated to have occurred in May, 1868; the action was commenced in September, 1870. The defendants first put in an answer denying the allegations of the declaration; but averring that if the goods were delivered to them for the purpose stated, they were delivered to and received by them to be transported to the city of New York over Long Island sound, (not being river or inland navigation,) and were safely transported to New York in their steamship Oceanus, and that the damage, if any, was caused by fire happening to said steamship at her dock in New York, and said fire was not caused by the neglect or design of the defendants, who were the owners of said steamship, but occurred without their privity or knowledge; and they pleaded the first and third sections of the act of congress, approved March 3, 1851, entitled 'An act to limit the liability of ship-owners, and for other purposes;' the first section of which provided as follows, to-wit: 'That no owner or owners of any ship or vessel shall be subject or liable to answer for or make good to any one or more person or persons any loss or damage which may happen to any goods or merchandise whatsoever, which shall be shipped, taken in, or put on board any such ship or vessel, by reason or by means of any fire happening to or on oard the said ship or vessel, unless such fire is caused by the design or neglect of such owner or owners.' And the third section of said act provided as follows, to-wit: 'That the liability of the owner or owners of any ship or vessel for any embezzlement, loss, or destruction by the master, officers, mariners, passengers, or any other person or persons, of any property, goods, or merchandise shipped or put on board such ship or vessel, or for any loss, damage, or injury by collision, or for any act, matter or thing, loss, damage or forfeiture done, occasioned, or incurred without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner or owners respectively in such ship or vessel and her freight then pending.' The defendants subsequently amended their answer by adding a particular statement of the manner in which the loss occurred, namely, by a fire at New York, which commenced in a building on the wharf or pier at which the steamship lay after her arrival, and was rapidly communicated to the vessel, which was burnt to the water's edge, together with most of her cargo, including not only the goods of the plaintiffs, but a large quantity of goods of other persons, greatly exceeding in amount the value of the defendants' interest in the vessel and her freight then pending. The amended answer further stated, that the defendants having been sued in the present case and in other cases in New York city and elsewhere, for injuries to said cargo by said fire, and desiring as well to contest their liability, and the liability of the steamer, for the loss and damage occasioned by the fire, as also to claim the benefit of the limitation of liability provided for in the third and fourth sections of said act of congress, on May 14, 1875, filed in the proper district court of the United States having jurisdiction thereof, to wit, the district court for the southern district of New York, pursuant to said act and the rules of the supreme court of the United States in that behalf, their libel and petition, setting forth the facts and circumstances on and by reason of which such exemption from and limitation of liability were claimed, and offering to pay into said district court the amount of the defendants' interest in said vessel and freight, or to give a stipulation with sureties for the payment thereof into said court whenever the same should be ordered, praying relief in that behalf, and further praying that said district court would cause due appraisement to be had of the amount or value of the interest of said defendants in said steamer and her freight for said voyage, and would either order the same to be paid into said district court, or a stipulation to be given by the defendants with sureties for the payment thereof into said district court whenever ordered, and that said district court would issue a monition against all persons claiming damages for the loss, destruction, damage, and injury occasioned by said fire on board of said vessel, citing them to appear before said district court and make due proof of their respective claims at a time to be therein named, and also praying that said district court would designate a commissioner, before whom such claims should be presented, in pursuance of said monition; and that if upon the coming in of the report of said commissioner and confirmation thereof it should appear that said defendants were not liable for such loss, damage, destruction, and injury, it might be so finally decreed by said district court; otherwise, that the moneys paid or secured to be paid into said district court as aforesaid (after payment of the costs and expenses) should and might be divided pro rata among the several claimants in proportion to the amount of their respective claims, and praying that in the mean time, and until the final judgment should be rendered, said district court would make an order restraining the further prosecution of all and any sui or suits against said defendants in respect to any such claim or claims; that upon said libel said district court caused due appraisement to be had and made of the amount or value of the interest of said defendants in said steamer and her freight for said voyage, and duly made an order for the giving by the defendants of a stipulation with sureties for payment thereof into court whenever the same should be ordered. The answer further stated that the defendants, pursuant to the order of said district court, entered into a stipulation, with two sureties, to pay the value of said interest and freight as so appraised into said district court whenever ordered, which stipulation was approved, and said order having been complied with, a monition was thereupon issued by said district court against all persons claiming damages for the loss, destruction, damage, and injury occasioned by said fire on board said steamer, citing them to appear before said district court and make due proof of their respective claims at or before a certain time named in said monition, to-wit, at or before the fifteenth day of October, A. D. 1872, which time was at least three months from the issuing of said monition; and designating George F. Betts, Esq., a commissioner of said district court, as the commissioner before whom such claims should be presented, in pursuance of said monition, and ordering public and other notice of said monition as therein set forth, and that said notice had been served on the said Hill Manufacturing Company, as well as on all other claimants, pursuant to said monition; and said district court duly made an order restraining the further prosecution of all and any suit or suits against the defendants in respect of any such claim or claims. The answer then referred to a certified copy of the libel and the proceedings thereon, annexed to and made part of the answer, and also made profert of said libel and proceedings, and concluded as follows: 'And these defendants further say that said fire, and the injury thereby caused or occasioned, was without the privity or knowledge of these defendants. And these defendants, further answering, say that if the plaintiffs have any claim by reason of any injury to said cotton cloth, it cannot be enforced in this action, but can only be enforced in said suit in said district court, and then and there only under and pursuant to said act of congress. And these defendants, further answering, say that said steamer Oceanus was not a canal-boat, barge, or lighter, and was not used in rivers or inland navigation, and that said voyage from Providence to said city of New York was not in rivers or inland navigation; and that an injunction has been issued by said district court against said Hill Manufacturing Company, restraining and enjoining them from the further prosecution of this suit, and that said injunction has been duly served on said Hill Manufacturing Company; and further that said Hill Manufacturing Company sued in this court the Boston & Lowell Railroad Company for the alleged loss and injury complained of in the declaration in this cause to the cotton cloth therein mentioned, and recovered therein a judgment against said Boston & Lowell Railroad Company for said alleged loss and injury, which judgment was settled, paid, and satisfied.' Upon the filing of this answer the case was opened to a jury, but before any verdict was taken the case was reserved, upon the report of the judge who presided at the trial, for the consideration of the full court. In September term, 1875, it was ordered by the supreme judicial court that the case do stand for trial. Whereupon the defendants filed the following objections, viz.: 'And now, with the view of having this action taken to the supreme court of the United States upon a writ of error, if the final judgment therein in this honorable court shall be against the defendants, and for the purpose of saving the rights of the defendants, and so that their going to trial shall not be construed a waiv r of their rights or of the objections herein, said defendants come and object to and protest against the ruling and decision of this honorable court ordering and directing said action to stand for trial, and also the ruling of this honorable court that if the loss complained of by the plaintiff was occasioned by the neglect of defendants it must have been with their privity or knowledge, and was not within the act of congress limiting the liability of ship-owners; also, the ruling that the proceedings in the district court of the United States did not affect the jurisdiction of this honorable court.' In April term, 1876, the cause came on for trial, and the defendants, by leave of the court, further amended their answer by setting forth, among other things, the final decree of the district court of the United States for the southern district of New York, made on the sixteenth of October, 1872, by which it was adjudged and decreed that the Hill Manufacturing Company, (the plaintiffs in the present suit,) among other parties, be forever debarred from prosecuting any claims for damages for any loss, damage, or injury occasioned by the fire on board the steamer Oceanus on the twenty-fourth of May, 1868. Thereupon the trial proceeded, and the evidence showed that the plaintiffs' goods were delivered to the defendants at Providence to be transported to New York, and were thus transported in the steamer Oceanus upon Long Island sound, and that the vessel safely arrived at New York with the goods on board, and was moored in a slip or dock on the North river side on a Sunday morning; and while lying there on that day, ready to be discharged, the fire occurred which caused the loss in question, commencing in a building on the wharf, or pier, which was used by the defendants in their transportation business. The plaintiffs adduced evidence tending to show that this building was not properly constructed and managed to avoid the risk of fire, and that the defendants were guilty of negligence in that behalf; and they contended that if the jury believed that the defendants were guilty of such negligence, they could not claim the benefit of the act of congress, but were liable to respond for the loss of the goods. The defendants adduced counter proofs, tending to show that they were not guilty of any negligence; and also put in evidence the record of proceedings upon their libel and petition in the district court of the United States for the southern district of New York, corresponding to the statements of their answer; and it was admitted that process and the restraining order issued in said suit had been duly served upon the plaintiffs. The record of proceedings in said suit is set forth in the transcript, but it is unnecessary to describe them in detail. They appear to be in conformity to the act of 1851, and to the orders made by this court relating to proceedings under said act for securing the benefit of limited liability provided for therein. They were instituted in the proper court, namely, the district court of the United States for the southern district of New York, in which district the steamer was found, or so much as remained of her after the fire. The libel and petition set forth the proper facts and made the proper allegations as well to show that neither the libelants nor the steamer were liable for the injury caused by the fire, as to show that, if there was any liability, the libelants were only liable to the extent of their interest in the vessel and freight; and upon this libel and petition, the proper proceedings were had, and the proper monition and process were issued, published and served, to ascertain the amount of the libelants' interest in the steamer and freight, and to bring all parties before the court who had any claims arising from the injury caused by the fire; and the said district court, on the thirteenth day of May, 1872, made an order restraining the further prosecution of the suits which had been commenced against the libelant in New York, which was duly served upon the respective parties concerned; and after the amount of the libelants' interest in the vessel and freight had been duly appraised, on the eighth of July, 1872, a further order was made that a monition issue against all persons claiming damages for the loss and injury occasioned by the fire on board of said steamer, citing them to appear before said district court and make due proof of their respective claims at or before the fifteenth day of October, 1872; and that the monition be published, and personally served on the attorneys, proctors, or solicitors of the plaintiffs or libelants in each of the suits brought and pending in any court in the United States against the libelants, or against the said steamer Oceanus, to recover for any such damages. A monition was duly issued in pursuance of this order, and was served* on the attorney of the plaintiffs in this suit, on the thirtieth day of July, 1872. On the second day of September, 1872, the district court made a further order against the different plaintiffs and libelants by name who had brought suits for damages, etc., and, among others, against the plaintiffs in this case, ordering them to refrain from the further prosecution of their respective suits, or any suit whatever, against the libelants (the defendants in this suit) to recover for any loss of cargo by the aforesaid fire on the steamship Oceanus; and that any further prosecution of such suits be and the same was by said order restrained. A certified copy of this order was served on the plaintiffs' attorney in this suit at Boston, on the seventh day of October, 1872, and upon their treasurer at the same place, on the ninth of the same month. On the sixteenth of October, 1872, default was taken against the plaintiffs in this case, and divers other persons, for failing to appear and present their claims before the district court, according to the monition in that behalf, and a decree was made forever debarring them from presenting, filing, or prosecuting any claims for damages for any loss or injury occasioned by said fire. After the evidence was closed, the defendants asked the court to rule that upon the whole evidence in the case the plaintiff could not maintain its action, and that the jury must find for the defendant; but the court refused so to rule. The defendants then asked the court to instruct the jury, among other things, as follows: '(1) That under the proper construction of the act of congress entited 'An act to limit the liability of ship-owners and for other purpose,' (St. 1851, c. 43,) the libel and petition of the defendant filed in the district court of the United States for the southern district of New York, and the proceedings had thereon, the record of which has been put in evidence, are a bar to the plaintiff's action. '(2) That under the proper construction of said act of congress the plaintiff is precluded from maintaining its action by said proceedings in said district court. '(3) That by the decree of said district court, made upon said libel and petition, and the subsequent proceedings thereon, it has been adjudged as between the parties to the present suit that the fire which caused the damage, for which the plaintiff seeks to recover, was not caused by the design or neglect of the defendant within the meaning of said act of congress.' The court refused to give these instructions; but left it to the jury to find for the plaintiffs if they were satisfied from the evidence that the fire was caused by the negligence of the defendants, either in respect to the construction and equipment of the vessel, or in respect to the construction and management of the pier or buildings thereon. To all the rulings of the court the defendant excepted; and the jury having found a verdict for the plaintiffs, the exceptions were argued before the supreme judicial court and were overruled, and judgment was entered for the plaintiffs. To that judgment this writ of error is brought. (The case, as decided by the supreme judicial court of Massachusetts, is reported in 113 Mass. 495, and 125 Mass. 292.) The principal question in this case is whether the institution of proceedings in the district court of the United States, under the act of 1851, for procuring a decree of limited liability of the owners of the Oceanus (the defendants in the present action) for the losses and injuries to goods on board of the vessel, superseded the prosecution of claims for the same losses and injuries in other courts. It seems to us that this must be the necessary effect of such proceedings, and that this results as well from the language of the law as from its object and purpose. The first section of the act exempts shipowners from liability for losses on board of their ship by fire 'unless such fire is caused by the design or neglect of such owner or owners.' The second section relates to the shipping of precious metals and other valuables without giving notice of their character and value, and exempts the master and owners of the vessel, in such case, from liability as carriers. The third section declares that the liability of ship-owners for embezzlement, loss, or destruction of goods on board of their ship by the master, crew, passengers, or others, or for loss or damage by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner or owners respectively in such ship or vessel and her freight then pending. The fourth section of the law declares: 'That if any such embezzlement, loss, or destruction shall be suffered by several freighters or owners of goods, wares, or merchandise, or any property whatever, on the same voyage, and the whole value of the ship or vessel and her freight for the voyage shall not be sufficient to make compensation to each of them, they shall receive compensation from the owner or owners of the ship or vessel in proportion to their respective losses; and for that purpose the said freighters and owners of the property, and the owner or owners of the ship or vessel, or any of them, may take the appropriate proceedings in any court for the purpose of apportioning the sum for which the owner or owners of the ship or vessel may be liable among the parties entitled thereto. And it shall be deemed a sufficient compliance with the requirements of this act, on the part of such owner or owners, if he or they shall transfer his or their interest in such vessel and freight, for the benefit of such claimants, to a trustee, to be appointed by any court of competent jurisdiction, to act as such trustee for the person or persons who may prove to be legally entitled thereto, from and after which transfer all claims and proceedings against the owner or owners shall cease.' 9 St. 635, 636. By the last section of the act it is declared that it shall not apply to the owner or owners of any canal-boat, barge, or lighter, or to any vessel of any description whatever, used in rivers or inland navigation. In these provisions of the statute we have, sketched in outline, a scheme of laws and regulations for the benefit of the shipping inter est, the value and importance of which to our maritime commerce can hardly be estimated. Nevertheless, the practical value of the law will largely depend on the manner in which it is administered. If the courts having the execution of it administer it in a spirit of fairness, with the view of giving to ship-owners the full benefit of the immunities intended to be secured by it, the encouragement it will afford to commercial operations (as before stated) will be of the last importance; but if it is administered with a tight and grudging hand, construing every clause most unfavorably against the ship-owner, and allowing as little as possible to operate in his favor, the law will hardly be worth the trouble of its enactment. Its value and efficiency will also be greatly diminished, if not entirely destroyed, by allowing its administration to be hampered and interfered with by various and conflicting jurisdictions. As the present case raises a question of great importance to the practical and successful working of the law, the decision of which, indeed, will determine whether it is to be of any real value, it will be proper to examine a little the grounds on which, as well the law itself as the proceedings adopted for carrying it into execution, rest for their support. We have no doubt that congress had power to pass the law. It is not only a maritime regulation in its character, but it is clearly within the scope of the power given to congress 'to regulate commerce.' In the case of The Lottawana, 21 Wall. 558, speaking of the power to make changes in the maritime law of the country, we said: 'Congress undoubtedly has authority under the commercial power, if no other, to introduce such changes as are likely to be needed. The scope of the maritime law and that of commercial regulation are not coterminous, it is true; but the latter embraces much the largest portion of ground covered by the former. Under it congress has regulated the registry, enrollment, license, and nationality of ships and vessels; the method of recording bills of sale and mortgages thereon; the rights and duties of seamen; the limitations of the responsibility of ship-owners for the negligence and misconduct of their captains and crews; and many other things of a character truly maritime. * * * On this subject the remarks of Mr. Justice NELSON, in delivering the opinion of the court in White's Bank v. Smith, 7 Wall. 655, (which established the validity and effect of the act respecting the recording of mortgages on vessels in the custom-house,) are pertinent. He says: 'Ships or vessels of the United States are creatures of the legislation of congress. None can be denominated such, or be entitled to the benefits or privileges thereof, except those registered or enrolled according to the act of September 1, 1789; and those which, after the last day of March, 1793, shall be registered or enrolled in pursuance of the act of thirty-first December, 1792, and must be wholly owned by a citizen or citizens of the United States, and to be commanded by a citizen of the same. * * * Congress having created, as it were, this species of property, and conferred upon it its chief value, under the power given in the constitution to regulate commerce, we perceive no reason for entertaining any serious doubt but that this power may be extended to the securing and protection of the rights and title of all persons dealing therein." It need not be added that if congress had power to pass the act of 1851, it is binding on all courts and jurisdictions throughout the United States. We have said that, by the provisions of the act, the scheme was sketched in outline. A reference to its provisions shows that it was only in outline; and that the regulation of details as to the form and modes of proceeding was left to be prescribed by judicial authority. The law was evidently drawn in view of similar laws adopted and in operation in England and in some of the states. It laid down a few general principles and propositions, and left it to the courts to enforce them and carry them into practical effect. Although the act was passed in 1851, it stood on the statute-book for 20 years before a careful scrutiny of its provisions was demanded of this court. In the case of Norwich Transp. co. v. Wright, decided in December term, 1871, and reported in 13 Wall. 104, we were called upon to interpert the act, and to adopt some general rules for the better carrying of it into effect. On that occasion a history of similar acts, both in England and this country, an examination of the general maritime law on the same subject, and the circumstances under which the act of 1851 was passed, were reviewed, and the general effect and c nstruction of the act were examined and discussed. The consideration given to the whole subject in the opinion delivered in that case, and in subsequent opinions of this court when the matter has been brought up for examination, notably in the cases of The Benefactor, 103 U. S. 239, and The North Star, 106 U. S. 17, [1 SUP. CT. REP. 41], supersedes the necessity of any minute examination of the law at this time. We will make one extract from the opinion in the case first referred to. It is there said: 'The proper course of proceeding for obtaining the benefit of the act would seem to be this: When a libel for damages is filed, either against the ship in rem or the owners in personam, the latter (whether with or without an answer to the merits) should file a proper petition for an apportionment of the damages according to the statute, and should pay into court (if the vessel or its proceeds is not already there) or give due stipulation for such sum as the court may, by proper inquiry, find to be the amount of the limited liability, or else surrender the ship and freight by assigning them to a trustee in the manner pointed out in the fourth section. Having done this, the ship-owner will be entitled to a monition against all persons to appear and intervene pro interesse suo, and to an order restraining the prosecution of other suits. If an action should be brought in a state court, the ship-owners should file a libel in admiralty, with a like surrender or deposit of the fund, and either plead the fact in bar in the state court, or procure an order from the district court to restrain the further prosecution of the suit. The court having jurisdiction of the case, under and by virtue of the act of congress, would have the right to enforce its jurisdiction, and to ascertain and determine the rights of the parties. For aiding parties in this behalf, and facilitating proceedings in the district courts, we have prepared some rules which will be announced at an early day.' These rules were announced at a subsequent day of the same term, and will be found at the commencement of 13 Wall. xii., xiii. The substance of these rules, so far as relates to the purpose in hand, was as follows: That ship-owners desiring to claim the benefit of limitation of liability provided for in the third and fourth sections of the act, may file a libel or petition in the proper district court of the United States, setting forth the facts and circumstances on which such limitation of liability is claimed, and praying relief in that behalf; and thereupon the court, having caused due appraisement to be had of the amount or value of the interest of said owners respectively in the ship or vessel, and her freight for the voyage, shall make an order for the payment of the same into court, or for the giving of a stipulation with sureties for payment thereof into court whenever the same shall be ordered; or, if the owners shall so elect, the court shall, without such appraisement, make an order for the transfer by them of their interest in such vessel and freight, to a trustee to be appointed by the court under the fourth section of the act, and upon compliance with such order the court shall issue a monition against all persons claiming damages for loss or injury to goods, (respecting which the limited liability is sought,) citing them to appear before the court and make due proof of their respective claims, at or before a certain time not less than three months from issuing the same; and public notice of the monition shall be given as in other cases, and such further notice served through the post-office, or otherwise, as the court in its discretion may direct; and the court shall also, on the application of the owner or owners, make an order to restrain the further prosecution of all and any suit or suits against said owners in respect of any such claims. Provision is then made for proof of all claims before a commissioner to be appointed by the court; for a repo t thereon; and for a pro rata distribution of the money paid into court or the proceeds of the ship and freight among the several claimants. The rules further provide that the shipowners, making suitable allegations for the purpose, shall be at liberty to contest their liability, or the liability of the vessel, to pay any demages, as well as to show that if liable they are entitled to a limitation of liability under the act; and that any parties claiming damages may contest the right of the ship-owners to exemption from liability, or to the benefit of a limited liability. Finally, the fules provide that the libel or petition shall be filed and the said proceedings had in any district court of the United States in which the ship or vessel may be libeled to answer for any such loss or damage; or, if the vessel be not libeled, then in the district court of any district in which the owners may be sued; and if the ship have already been libeled and sold, the proceeds shall represent it. The court had no doubt then, and has no doubt now, of its power to make these rules under the acts of congress which authorized it to prescribe the forms of proceeding in equity and admiralty causes. The process acts of 1792 and 1828 had declared that the forms of writs and other process, and the forms and modes of proceeding in suits in equity and in those of admiralty and maritime jurisdiction, should be according to the principles, rules, and usages which belong to courts of equity and admiralty respectively, as contradistinguished from courts of common law, except as modified by the judiciary act of 1789; but subject to such alterations and additions as the respective courts should in their discretion deem expedient, or to such regulations as the supreme court of the United States should think proper from time to time by rule to prescribe to any circuit or district court concerning the same. 1 St. 276; 4 St. 280. And the process act of 1842 gave the supreme court full power and authority to prescribe and regulate the forms of process in the district and circuit courts, and the forms and modes of framing and filing libels, bills, answers, and other proceedings and pleadings, in suits at law, in admiralty, or in equity in said courts, and the forms and modes of taking evidence, and generally the forms and modes of proceeding to obtain relief, and of drawing up and enrolling decrees, and of proceeding before trustees appointed by the court, and generally to regulate the whole practice of said courts. 5 St. 518. We are clearly of opinion that the authority thus vested in this court was adequate and sufficient to enable it to make the rules before referred to. The subject is one preeminently of admiralty jurisdiction. The rule of limited liability prescribed by the act of 1851 is nothing more than the old maritime rule administered in courts of admiralty in all countries except England from time immemorial; and, if this were not so, the subject-matter itself is one that belongs to the department of maritime law. The adoption of forms and modes of proceeding requisite and proper for giving due effect to the maritime rule thus adopted by congress, and for securing to ship-owners its benefits, was therefore strictly within the powers conferred upon this court; and, where the general regulations adopted by this court do not cover the entire ground, it is undoubtedly within the power of the district and circuit courts, as courts of admiralty, to supplement them by additional rules of their own. We have deemed it proper to examine thus fully the foundation on which the rules adopted in December term, 1871, were based, because, if those rules are valid and binding, (as we deem them to be,) it is hardly possible to read them in connection with the act of 1851 without perceiving that, after proceedings have been commenced in the proper district court in pursuance thereof, the prosecution pari passu of distinct suits in different courts, or even in the same court, by separate claimants against the ship-owners, is, and must necessarily be, utterly repugnant to such proceedings, and subversive of their object and purpose. In promulgating the rules referred to, this court expressed its deliberate judgment as to the proper mode of proceeding on the part of ship-owners for the purpose of having their rights under the act declared and settled by the definitive decree of a competent court, which should be binding on all parties interested, and protect the ship-owners from being harassed by litigation in other tribunals. Unless some proceeding of this kind were adopted which should bring all the parties interested into one litigation, and all the claimants into concourse for a pro rata distribution of the common fund, it is manifest that in most cases the benefits of the act could never be realized. Cases might occur, it is true, in which the ship-owners could avail themselves of those benefits, by way of defense alone, as where both ship and freight are totally lost, so that the owners are relieved from all liability whatever. But even in that case, in the absence of a remedy by which they could obtain a decree of exemption as to all claimants, they would be liable to a diversity of suits brought, perhaps, in different states, after long periods of time, when the witnesses have been dispersed, and issuing in contrary results before different tribunals; while in the ordinary cases, where a limited liability to some extent exists, but to an amount less than the aggregate claims for damages, so as to require a concourse of claimants and a pro rata distribution, the prosecution of separate suits, if allowed to proceed, would result in a subversion of the whole object and scheme of the statute. The questions to be settled by the statutory proceedings being—First, whether the ship or its owners are liable at all, (if that point is contested and has not been decided;) and, secondly, if liable, whether the owners are entitled to a limitation of liability,—must necessarily be decided by the district court having jurisdiction of the case; and to render its decision conclusive, it must have entire control of the subject to the exclusion of other courts and jurisdictions. If another court may investigate the same questions at the same time, it may come to a conclusion contrary to that of the district court; and if it does, (as happened in this case,) the proceedings in the district court will be thwarted and rendered ineffective to secure to the ship-owners the benefit of the statute. The case is very different from that of two concurrent actions for a debt or other demand proceeding at the same time in different courts; though even that, in the English law, was matter for plea in abatement in the action last instituted. Still, as both actions in such case are prosecuted for the same end,—the satisfaction of the debt,—and as only one satisfaction can be had, no essential conflict arises between the two. But the very object of proceedings for limited liability is to inquire and determine whether the parties ought to be sued at all in any other tribunal after giving up, or submitting to pay the value of, all their interest in the ship and freight. Besides, it is obvious on the face of the thing that proceedings for limited liability cannot be participated in by two jurisdictions without interference and conflict between them, and cannot have any useful effect if a different court may inquire into and decide the same question, and execute a separate judgment independent of and perhaps contrary to that of the court to which the inquiry properly belongs. Such a state of things would utterly defeat the purpose of the law. The judgment in one court would annul or render nugatory that of the other. The inconveniences that may arise from preventing or arresting the prosecution of separate suits by the claimants are no greater in this case than in the case where proceedings at law are arrested for the pur ose of having an investigation in a court of equity, or where distinct and separate suits are restrained for the purpose of settling a common controversy in a single proceeding, as in the case of bills for preventing a multiplicity of suits, and in cases of bankruptcy. By the bankrupt act of 1867 it was enacted that no creditor whose debt was provable under the act should be allowed to prosecute to final judgment any suit at law or in equity therefor against the bankrupt, until the question of the debtor's discharge should have been determined; although, if the amount due the creditor was in dispute, the suit, by leave of the court in bankruptcy, might proceed to judgment for the purpose of ascertaining the amount, but execution should be stayed. See Hill v. Harding, 107 U. S. 631; [2 SUP. CT. REP. 404.] None of the cases here referred to more imperatively require a cessation of proceedings in other suits for the same cause than that of the proceeding for a limitation of liability under the statute in question. Nor is the inconvenience any greater than that which occurs when a case is removed from the state to a federal court. In that case, on the presentation of a petition for removal, duly verified and showing the proper grounds for removal, and accompanied with the bond required by the statute on that subject, the law declares 'it shall then be the duty of the state court to accept said petition and bond, and proceed no further in such suit.' In the case before us, as well as in the cases of bankruptcy and of removal, the parties have a right to have their causes heard and determined by a court of the United States invested with appropriate jurisdiction, and capable of affording a proper mode of relief. In England, where the forms and modes of proceeding in the courts of admiralty are (or formerly were) greatly hampered and restricted, ship-owners seeking a decree of limited liability under the law of that country were forced to resort to the court of chancery for redress, and to call before that court the various parties interested. Here they were subjected to some onerous conditions before the court would exercise jurisdiction in their behalf, one of which was that they must confess liability for the damages which they sought to have limited in accordance with the act of parliament. But when this was done, and the amount of the confessed liability was paid into court, they were entitled to an injunction against all other suits and proceedings, wherever instituted or pending; and the cause then proceeded in due course, by reference to a master to take the proof of claims and make a report of the facts, and by a final decree of distribution. Under recent English statutes, the high court of admiralty, as well as the court of chancery, is empowered to administer the law, when it has possession of the ship or its proceeds. In the eleventh edition of Abb. Shipp., published in 1867, it is stated as follows: 'In cases where several claims are made or apportioned against an owner for loss of life, personal injury, or loss or damage to ships, boats, of goods, the court of chancery and the high court of admiralty, whenever any ship or proceeds thereof are under its arrest, in England and Ireland, and the court of session in Scotland, and any competent court in a British possession, are empowered to entertain proceedings at the suit of such owner for the purpose of determining the amount of his liability, and for the distribution ratably of such amount, and to stop all actions and suits pending in any other court in relation to the same subject-matter.'1 It is believed that in all other countries except England the courts of admirality, or tribunals of commerce having cognizance of maritime causes, exclusively exercise this jurisdiction; and no other courts can really exercise it so conveniently and satisfactorily as those courts can. And the general course of proceeding, in whatever courts it is exercised, shows the necessity, everywhere acknowledged, that the court exercising the jurisdiction in any case should have exclusive control of the case. In view of these considerations, and having no doubt of the jurisdiction of the district court over the matter, as courts of admiralty, in the rules adopted in December term, 1871, the district court of the district in which the vessel is libeled or found, or in which the owners are sued, was designated as the proper court in which to institute the proceedings for obtaining a decree of limited liability. When cases arise in which the vessel and freight have been totally lost, and no district court has, or can have, possession of any fund to distribute, resort may probably be had with propriety to the district court of the district in which the owners reside, or where the vessel perished. It will be time enough, however, to consider what is proper in such exceptional cases when they arise. In Ex parte Slayton, 105 U. S. 451, we held that jurisdiction accrued to the district court of the district comprising the port to which the vessel was bound, although she had been sunk in the lake and only a few fragments were washed ashore, the proceeds of which, however, amounting to a trifling sum, were deposited in the court. On this branch of the subject the following remarks were made in the opinion pronounced in the case of Norwich Transp. Co. v. Wright, supra: 'The act does not state what court shall be resorted to, nor what proceedings shall be taken; but that the parties, or any of them, may take 'the appropriate proceedings in any court, for the purpose of apportioning the sum for which,' etc. Now, no court is better adapted than a court of admiralty to administer precisely such relief. It happens every day that the proceeds of a vessel, or other fund, is brought into that court to be distributed among those whom it may concern. Claimants are called in by monition to present and substantiate their respective claims; and the fund is divided and distributed according to the respective liens and rights of all the parties. Congress might have invested the circuit courts of the United States with jurisdiction of such cases by bill in equity, but it did not. It is also evident that the state courts have not the requisite jurisdiction. Unless, therefore, the district courts themselves can administer the law, we are reduced to the dilemma of inferring that the legislature has framed a law which is incapable of execution. This is never to be done if it can be avoided. We have no doubt that the district courts, as courts of admiralty and maritime jurisdiction, have jurisdiction of the matter; and this court undoubtedly has the power to make all needful rules and regulations for facilitating the course of proceeding.' 13 Wall. 123. We see no reason to modify these views, and, in our judgment, the proper district court, designated by the rules, or otherwise indicated by circumstances, has full jurisdiction and plenary power, as a court of admiralty, to entertain and carry on all proper proceedings for the due execution of the law, in all its parts; and its decrees, in cases subject to its jurisdiction, are valid and binding in all courts and places. In the present case, the proper court undoubtedly was the district court of the United States for the southern district of New York, where the remains of the vessel were situated, and where suits were brought against the owners. Proceedings under the act having been duly instituted in this court, it acquired full jurisdiction of the subject-matter; and having taken such jurisdiction, and procured control of the vessel and freight, (or their value,) constituting the fund to be distributed, and issued its monition to all parties to appear and present their claims, it became the duty of all courts before which any of such claims were prosecuted, upon being properly certified of the proceedings, to suspend further action upon said claims. But the power of the district courts to issue an injunction to stay proceedings n a state court is questioned, since, by the judiciary act of 1793 (1 St. at Large, 335,) it was declared that no writ of injunction shall be granted [by the United States courts] 'to stay proceedings in any court of a state.' But the act of 1851 was a subsequeut statute, and, by the fourth section of this act, after providing for proceedings to be had under it for the benefit of ship-owners, and after declaring that it shall be deemed a sufficient compliance with its requirements on their part if they shall transfer their interest in ship and freight for the benefit of the claimants to a trustee to be appointed by the court, it is expressly declared, that 'from and after [such] transfer, all claims and proceedings against the owners shall cease.' Surely, this injunction applies as well to 'claims and proceedings' in state courts as to those in the federal courts; and while the district court having jurisdiction of the case, for the purpose of enforcing the act of congress and the rules adopted by this court in pursuance thereof, can only direct an injunction against the parties, and not against the courts in which such 'claims and proceedings' are prosecuted, yet any further proceedings on the part of said courts, after being judicially informed by plea or suggestion duly made in the cause of the action and proceedings in the district court, would be against the express words of the act, and clearly erroneous. The operation of the act, in this behalf, cannot be regarded as confined to cases of actual 'TRANSFER,' (WHICH IS MERELY ALLOWED As a sufficient compliance with the law,) but must be regarded, when we consider its reason and equity and the whole scope of its provisions, as extending to cases in which what is required and done is tantamount to such transfer; as where the value of the owners' interest is paid into court, or secured by stipulation, and placed under its control for the benefit of the parties interested. This view of the statutory injunction, and of its effect upon separate actions and proceedings, renders it unnecessary to determine the question as to the legality of the writ of injunction issued by the district court. Although we have little doubt of its legality, the question can only be properly raised on an application for an attachment for disobeying it. As the writ was issued prior to the adoption of the Revised Statutes, the power to issue it was not affected by any supposed change of the law introduced into the Revision by the 720th section, of which the prohibition of the act of 1793, in regard to injunctions against proceedings in state courts, has this exception appended to it: 'Except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.' Under the rule of expressio unius, this express exception may be urged as having the effect of excluding any other exception, though it is observable that the injunction clause in the act of 1851 is preserved without change in section 4285 of the Revised Statutes, and will probably be construed as having its original effect due to its chronological relation to the act of 1793. But, as before indicated, the legality of the writ of injunction is not involved in this case. In our opinion the state court, in overruling the plea of the defendants, which set up the proceedings pending in the district court, and in ordering the cause to stand for trial, and again, on the trial, in overruling as a defense the proceedings and decree of the district court as set up in the amended answer, disregarded the due effect, as well as the express provisions, of the act of 1851, and therein committed error. It was the duty of the court, as well when the proceedings pending in the district court were pleaded and verified by profert of the record as when the decree of said court was pleaded and proved, to have obeyed the injunction of the act of congress, which declared that 'all claims and proceedings shall cease.' When the plea only showed that proceeding for limited liability were pending and undetermined in the district court, probably a stay of proceedings was all that the defendants could require; but when they set up and produced the final decree of that court, forever debarring the plaintiffs from prosecuting any claim for damages, they were entitled either to a verdict and judgment in their favor or to a dismissal of the proceedings. We have assumed in the foregoing discussion that the case of loss and damage by fire on board of a ship is within the provisions of the third and fourth sections of the act of 1851. This, however, is disputed, and it is necessary to examine the question. The language of the third section (which governs also the fourth) is certainly broad enough to embrace cases of loss by fire. It declares that the liability of the owner or owners of any ship or vessel 'for any act, matter or thing, loss, damage, or forfeiture, occasioned or incurred without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner or owners respectively in such ship or vessel and her freight then pending.' Why should liability for loss by fire be excepted from the relief here prescribed? It is just as much within the reason of the law as any other liability; and it is within its terms. If it is excepted, it must be by virtue of some implication arising from other parts of the law. Such an implication is sought in the first section, which declares that no owner or owners of a ship or vessel shall be liable to answer for any loss or damage which may happen to any goods on board of such ship or vessel by reason or means of any fire happening to or on board of said ship or vessel, 'unless such fire is caused by the design or neglect of such owner or owners.' It is contended that this section covers the whole ground so far as liability for losses by fire is concerned; and therefore such liability must be impliedly excepted from the relief provided by section three. But we fail to see why this should necessarily follow. Fire, except when produced by lightning, not being regarded in the commercial law as the act of God, ship-owners, as common carriers, were held liable for any loss or damage caused thereby. The first section of the act of 1851 was no doubt intended to change this rule. It was copied (all except the last clause) from the second section of 26 Geo. III. c. 86, passed in 1786. The last clause of the section, excepting from its operation cases in which the fire is caused 'by the design or neglect' of the owners, was probably implied in the English statute without being expressed, as in ours. In all cases of loss by fire, not falling within the exception, the exemption from liability is total. But there is no inconsistency or repugnancy in allowing a partial exemption in cases falling within the third section; that is, cases of loss by fire happening without the privity or knowledge of the owners. They may not be able, under the first section, to show that it happened without any neglect on their part, or, what a jury may hold to be neglect; while they may be very confident of showing, under the third section, that it happened without their privity or knowledge. The conditions of proof, in order to avoid a total or a partial liability under the respective sections, are very different. It is true the owners of a ship may desire to contest all liability whatever, as well as to establish a limited liability, if they fail in the first defense; and this they may do, as well in cases of loss by fire as in other cases, in one and the same proceeding. And we see no repugnancy between the two defenses. One is a more perfect defense than the other, and requires a different class or degree of proofs. That is all. In our judgment the case of loss or damage by fire is comprised within the terms and relief of the third and fourth sections of the act. The judgment of the supreme judicial court of Massachusett is reversed and the cause remanded, with directions to take such further proceedings as may be in accordance with this opinion. FIELD, J., dissenting. I am not able to agree with the court in its disposition of this case. As I construe the act of 1851 to limit the liability of ship-owners, the liability of the steam-ship company for the loss by fire of the goods of the plaintiff below, the Hill Manufacturing Company, rests upon the first section. In my judgment that section is not qualified nor in any respect affected by the rest of the act; nor is an action to recover for losses by fire, caused by the design or neglect of the owner of the vessels, controlled by proceedings taken by him to limit his liability for losses from other causes. The opinion of the court proceeds on the assumption that cases of loss and damage by fire are within the provisions of the third section of the act; it so states expressly. Yet this assumption necessarily involves the conclusion that a fire, caused by the design or neglect of the owner, may occur without his privity or knowledge; which appears to me to be nothing less than saying that contradictory and inconsistent terms may be appropriately applied to the same transaction. The object of the act was to change the rule of the common law as to the liability of the owners of vessels for losses and injuries to which they did not contribute, either designedly or by their neglect, but which were attributable entirely to the acts or omissions of their officers or employes. The common law placed a burdensome responsibility upon the owners for the acts or omissions of their agents or servants without their knowledge or assent; and to lighten this responsibility the statute in question was passed. It was not its purpose to limit the responsibility of the owners for the consequences of their own wrongful acts or omissions. The first section exempts them from all liability for loss or damage by fire of goods shipped on board their vessels, unless such fire is caused by their design or neglect. When the fire is thus caused the common-law rule of liability remains as before, and that extends to the whole value of the property, if entirely lost, or to the extent to which it may be damaged, if only partially destroyed. The concluding provision of the section is equivalent to a declaration that the exemption provided in the preceding part shall not exist when the fire originated from the wrongful acts or omissions of the owners. The third section prescribes a limited liability of the owners for losses from a great variety of acts. It does not exempt them from all liability, but restricts it in the cases mentioned to the value of the r interest in the vessels and freight then pending. It is as follows: 'That the liability of the owner or owners of any ship or vessel for any embezzlement, loss, or destruction by the master, officers, mariners, passengers, or any other person or persons, of any property, goods, or merchandise shipped or put on board such ship or vessel; or for any loss, damage, or injury by collision; or for any act, matter, or thing, loss, damage, or forfeiture done, occasioned, or incurred without the privity or knowledge of such owner or owners,—shall in no case exceed the amount or value of the interest of such owner or owners respectively in such ship or vessel, and her freight then pending.' The fourth section refers to the acts mentioned in the third, and declares that if any such embezzlement, loss, or destruction shall be suffered by several freighters or owners of goods on the same voyage, and the whole value of the ship and freight shall not be sufficient to make compensation to each of them, they shall receive compensation from the owner in proportion to their respective losses; and for that purpose the freighters and owners of the property and the owner of the ship, or any of them, may take proceedings in any court for the purpose of apportioning the sum for which he may be liable among the parties thereto; and the owner may transfer his interest in the ship and freight, for the benefit of the claimants, to a trustee, to be appointed by any court of competent jurisdiction, to act as such for the persons entitled thereto, after which transfer all claims and proceedings against him shall cease. It seems clear that the various cases of damages and losses enumerated in section 3 are not intended to embrace losses by fire. This section first speaks of the liability of the owner for embezzlement, loss, or destruction, by the master, officers, mariners, passengers, or other persons, of property shipped on board the vessel. It then speaks of his liability for any loss, damage, or injury by collision; and, lastly, for any loss by any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred without his privity or knowledge. It is conceded that the language of the first and second parts of the section does not include losses by fire, and the language of the concluding clause does not necessarily include them. It may be applied to other cases; and as losses by fire are specifically embraced by the first section, it must receive such application as will give to each section full force. This is a settled rule of construction. Besides, it cannot be contended that an act done by the design of the owner could have been done without his privity or knowledge. It must necessarily have been done with both; and if the fire was caused by the neglect of the owner it must be presumed to have been caused with his knowledge. Where one is bound to do a thing, or to see that certain things are done, he is presumed to know the direct consequence of his carelessness and neglect in those respects. Especially is this so where his doing the thing, or seeing that it is done, is necessary to the safety of life or property. He cannot shield himself from responsibility by saying that he did not know what would be the consequence of his carelessness and neglect. The law presumes that he does know it and intends it. The act speaks of neglect by the owner, not by any subordinate officer or agent. It is therefore personal neglect which is meant: and it would be unreasonable to hold that the owner was ignorant of that which necessarily followed from his own personal conduct. Not only would this be unreasonable, but there is an inconsistency in holding that the first section exempts the owner from all liability in cases of fire happening without his design or neglect, if by the third section a liability is fastened upon him to the extent of the value of the ship and freight in case of a fire occurring without his privity or knowledge. And yet, according to the position of the court the owner is exempted by the first section from all liability if a fire occur without his knowledge and privity, and by the third section is subjected to liability to the extent of the value of the ship. As stated by counsel of the plaintiff below, there can be no public policy in absolving common carriers by water from their full liability to others for property which has been intrusted to their care, and has been lost by their design or neglect. It certainly would require language, as he observes, so clear and plain that no subtlety of criticism can escape from the conclusion, before such a purpose can be ascribed to congress. It would be establishing a limitation of liability against public policy, common right, and the universal feeling of justice. It would make the law one to protect wrong-doers, and to punish the innocent who had been injured by them while thus protected. If, then, the first section is not affected by the other sections of the act, the liability of the owner of a vessel, in case of fire caused by his design or neglect, exists, as it always has existed, at the common law; and that liability may be enforced in any court, state or federal, having jurisdiction of the parties. The other provisions by which the owner may seek to relieve himself from liability by surrendering his vessel and the freight earned, have no application to such a case. It follows that the defense of a liability limited, as asserted by the district court, goes to the ground. There is also another consideration which leads to the same conclusion. By section 9 of the judiciary act of 1789, re-enacted in section 563, cl. 8, of the Revised Statutes, a common-law remedy is expressly reserved to suitors in all cases where the admiralty has jurisdiction, provided the common law also gives a remedy; and that the common law gives a remedy in cases of losses by fire, where goods are intrusted to common carriers by water, there can be no doubt. Of such common-law remedy the state courts have exclusive jurisdiction when the parties are citizens of the same state, and concurrent jurisdiction with the federal courts when parties are citizens of different states. The state court, therefore, had jurisdiction of this case. It is a suit in personam, and even if a federal court might also take jurisdiction, that of the state court, having first attached, could not be subsequently defeated. Wallace v. McConnell, 13 Pet. 136; Taylor v. Carryl, 20 How. 583; Mallett v. Dexter, 1 Curt. 178. The federal court could not issue an injunction against the parties which would affect the jurisdiction of the state court. The act of congress of 1793 forbids any injunction from a federal court to restrain the prosecution of a suit in a state court; and this act has never been repealed, either expressly or by implication, except as to proceedings in bankruptcy. Rev. St. § 720; Peck v. Jenness, 7 How. 625; Taylor v. Carryl, supra; McKim v. Voorhies, 7 Cranch, 279; Diggs v. Wolcott, 4 Cranch, 179; Watson v. Jones, 13 Wall. 679; Haines v. Carpenter, 91 U. S. 254; Dial v. Reynolds, 96 U. S. 340. For these reasons, I am of opinion that the judgment of the state court should be affirmed, and I am authorized to say that Mr. Justice GRAY concurs with me in this conclusion.

107.US.38

1.S ection 41 of chapter 346 of the laws of Maryland of 1864, as amended and reenacted by chapter 291 of the laws of 1870, provides as follows: "After the passage of this act, it shall not be lawful to carry out of this State, in hogsheads, any tobacco raised in this State, except in hogsheads which shall have been inspected, passed, and marked agreeably to the provisions of this act, unless such tobacco shall have been inspected and passed before this act goes into operation; and any person violating the provisions of this section shall forfeit and pay the sum of three hundred dollars, which may be recovered in any court of law of this State, and which shall go to the credit of the tobacco fund: Provided,t hat nothing herein contained shall be construed to prohibit any grower of tobacco, or any purchaser thereof, who may pack the same in the county or neighborhood where grown, from exporting or carrying out of this State any such tobacco without having the same opened for inspection; but such tobacco so exported or carried out of this State without inspection shall in all cases be marked with the name in full of the owner thereof, and the place of residence of such owner, and shall be liable to the same charge of outage and storage as in other cases, and any person who shall carry or send out of this State any such tobacco, without having it so marked, shall be subject to the penalty prescribed by this section." Under that proviso, no requirement of the act of 1864 is dispensed with, except that of having the hogshead opened for inspection. The hogshead must still be delivered at a State tobacco warehouse, and there numbered and recorded and weighed and marked, and be found to be of the dimensions prescribed by statute, and to have been packed and marked as required. Held, 1. That said section 41, as so amended and re-enacted, is not, in its provisions as to charges for outage and storage, in violation of clause 2 of section 10 of article 1 of the Constitution of the United States, as respects any impost or duty imposed by it on exports, or of the clause of section 8 of article 1 which gives power to the Congress "to regulate com. merce with foreign nations and among the several States;" nor is it a regubuyer and manufacturer of leaf tobacco and the purchaser who buys for the purpose of transporting the tobacco to another State or to a foreign country, or as discriminating between different classes of exporters of tobacco. 2. That the charge for outage, thereby made, is an inspection duty, within the meaning of the Constitution, and it is not foreign to the character of an inspection law to require every hogshead of tobacco to be brought to a State tobacco warehouse. 3. That dispensing with an opening for inspection of the hogsheads mentioned in the proviso does not, in view of the other provisions of the tobacco inspection statutes of the State, deprive those statutes of the character of inspection laws. 2. The characteristics of inspection laws considered, with references to the legislation of the American colonies and the States on the subject. 3. Quare, Is it not exclusively the province of Congress to determine whether a charge or duty, under an inspection law, is or is not excessive. 4. The charge for outage in this case appears to be a charge for services properly rendered.

This is a writ of error to the court of appeals of the state of Maryland, and the question presented for our consideration is the constitutional validity of certain provisions in the tobacco inspection statutes of Maryland. The plaintiff in error, Turner, was indicted in the criminal court of Baltimore. The indictments contained two counts. The first count alleged that Turner packed in a hogshead tobacco grown by him on a farm belonging to him in Charles county, in Maryland, and marked the hogshead with his full name and his place of residence in said county, and shipped it to the city of Baltimore; that it was not delivered at any tobacco warehouse in said city, under the management or control of any inspector of tobacco appointed for said warehouse by the governor of the state of Maryland, under the constitution and laws of said state, nor to any one of said inspectors of tobacco, nor to any one acting under the authority of any one of said inspectors of tobacco, to be weighed, passed, or marked, and it was not weighed, passed, and marked by any such inspector of tobacco, nor by any person acting under the authority of any one of said inspectors of tobacco; but that the said Turner exported it from said city to Bremen, in Germany, without having procured it to be weighed, passed, and marked by any such inspector of tobacco, or by any person acting under the authority of any one of said inspectors of tobacco. The second count contained the same allegations, and the further averment that the said Turner did not, prior to said exportation, pay or cause to be paid any sum of money due for outage, or any sum of money due for storage, to the state of Maryland, on said hogshead, to any such inspector of tobacco, or to any other person having authority to receive the same, although certain sums of money were due and payable by him to said state for outage and storage on said hogshead. Separate demurrers were filed to each count of the indictment, and then a written stipulation was filed by the parties, as follows: 'It is agreed in this case (1) that the matters and facts charged in the indictment in this case are true, as therein stated; (2) that for the more speedy final determination of the questions of law involved in this case the demurrers which the traverser has entered to this indictment shall be overruled pro forma by the court; (3) that after such overruling of the demurrers the case shall be forthwith submitted to the court, without the intervention of a jury, upon the admission contained in the first paragraph of this agreement.' The demurrers were then overruled. The court then rendered a judgment that Turner pay a fine of $300. On the same day, Turner, by petition to said criminal court, setting forth that he had been adjudged guilty of a misdemeanor, and by the judgment of said court ordered to pay the sum of $300 to said state, prayed an appeal to the court of appeals of Maryland, assigning errors in the record. That court affirmed the judgment, and Turner has brought the case into this court by a writ of error, alleging that the statutes of Maryland on which the indictment was founded, and the validity of which was sustained by the state court, are repugnant to the constitution of the United States. It is claimed by the defendant in error that the statutory provisions, the validity of which is denied by the plaintiff in error, are 'inspection laws,' within the meaning of clause 2 of section 10 of article 1 of the constitution of the United States, which clause is as follows: 'No state shall, without the consent of the congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net proceeds of all duties and imposts laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the congress.' By chapter 346 of the Laws of Maryland of 1864, a new tobacco inspection law was enacted, as part of the Code of Public Local Laws, in place of and expressly repealing certain portions of said Code. It provides (section 1) for the appointment of five tobacco inspectors, one for each state tobacco warehouse in the city of Baltimore. By section 5 each tobacco inspector is required to employ such clerks and laborers, and provide and keep on hand such books, implements, and materials, as may be necessary for the economical and effective discharge of his duties as such inspector, and the salaries of the various clerks and laborers are prescribed, to be paid from the receipts in the respective offices, with the requirement that the inspectors shall at no time employ more labor than shall be necessary for the effective performance of the work to be done. There are provisions to facilitate the landing of tobacco at the wharves in front of the warehouses, and its removal therefrom, and to secure the safe preservation of the tobacco after its delivery at the warehouse. Section 10 is as follows: 'It shall be the duty of each tobacco inspector to cause each hogshead of tobacco landed or delivered at the warehouse to which he is appointed to be numbered in succession as received, and to cause said number to be entered in a book kept for that purpose, together with the time said hogshead was received, the name of the vessel or other conveyance, if known to him, by which said hogshead was brought to the city of Baltimore, and of the owner or consignee of said tobacco, and the initials or other marks on said hogshead, identifying the same; and, when said hogshead shall be removed from said warehouse, he shall cause an entry to be made, in some book kept for that purpose, of the time when the same was so removed, the name of the person to whom the same delivered, and of the vessel or other conveyance by which the same was taken away.' It is provided by section 12 that each inspector shall cause all the tobacco in the warehouse to which he may have been appointed to be inspected as speedily as practicable, in regular order, as numbered; and by section 13 that he shall cause each hogshead of tobacco, before it is uncased, to be weighed, and the tobacco in each hogshead and the cask itself to be separately weighed, and the weight of each hogshead, as first weighed, and the gross and net weight of the tobacco therein contained, after inspection, to be entered in a proper book, with sufficient reference to its marks and numbers as previously recorded; and by section 14 that he shall mark on the side of each hogshead, with a marking iron, its warehouse number and weight, and the net weight of tobacco contained therein, and its warehouse number on each head, with blacking; and, by succeeding sections, that he shall uncase and break all tobacco, in whatever state raised, and draw samples from each hogshead, and tie each lot of samples together, and label it with the warehouse number of the hogshead, and the number of the warehouse, and the date of inspection, and the name of its owner, or, if known, the initials or other marks on the hogshead, and deliver it sealed, if the tobacco be merchantable, to the owner, with a certificate stating the date of inspection, the warehouse mark and number of the hogshead, the weight thereof, and the net weight of the tobacco in it, and that unmerchantable tobacco shall be reconditioned, packed, reweighed, and reinspected, and then sampled and certified; and by section 27 that every hogshead shall be liable to the charge of $1.50 outage, if weighing less than 1,100 pounds, and to 15 cents additional for every 100 pounds, which shall be paid by the purchaser thereof to the inspector, before it is removed. Penalties are imposed by section 40 for erasing, altering, or adding to any mark placed by the inspector on any hogshead or any label of any sample, and for fraudulently taking any tobacco from a sample, or substituting other tobacco for any in such sample, and for counterfeiting any inspector's certificate or seal. Section 41 is as follows: 'After the passage of this act it shall not be lawful to carry out of this state, in hogsheads, any tobacco raised in this state, except in hogsheads which shall have been inspected, passed, and marked agreeably to the provisions of this act, unless such tobacco shall have been inspected and passed before this act goes into operation; and any person violating the provisions of this section shall forfeit and pay the sum of $300, which may be recovered in any court of law of this state, and which shall go to the credit of the tobacco fund.' This section was amended by chapter 291 of the Laws of 1870, by re-enacting it with the following addition: 'Provided, that nothing herein contained shall be construed to prohibit any grower of tobacco, or any purchaser thereof, who may pack the same in the county or neighborhood where grown, from exporting or carrying out of this state any such tobacco without having the same opened for inspection, but such tobacco so exported or carried out of this state without inspection shall in all cases be marked with the name in full of the owner thereof, and the place of residence of such owner, and shall be liable to the same charge of outage and storage as in other cases; and any person who shall carry or send out of this state any such tobacco, without having it so marked, shall be subject to the penalty prescribed by this section.' Section 42 prescribes the size of the casks in which tobacco raised in Maryland shall be packed, and forbids the inspector to inspect or pass it until packed in a hogshead of proper dimensions. By chapter 36 of the Laws of 1872, entitled 'An act to add a new article to the Code of Public General Laws regulating the inspection of tobacco,' some additional regulations were made, and some existing provisions were re-enacted, and some changes were made, and all inconsistent provisions of law were repealed; but the only material additions or changes made, so far as the present case is concerned, were these: By section 11, every inspector shall have uncased and break every hogshead of tobacco delivered for inspection, in so many places for Maryland and Ohio, and in so many places for Kentucky and Virginia, and, if the tobacco is sound, take a sample, and mark the hogshead with its number, the year of inspection, and the initials of the owner on each head and on the bilge, and the tare and net weight on the bilge. By section 15, each inspector shall keep in a book 'the name of the owner, the number, gross, tare, and net weight of every hogshead of tobacco inspected by him, the state where grown, the consignee of the same, the name of the vessel by which shipped out, and the name of the party shipping the same, and for every hogshead so inspected by him he shall issue his certificate or note, stating in such certificate or note the name or initials of the owner, the number of the hogshead, the state where grown, the date of inspection, and the gross, tare, and net weight of the hogshead, and he shall make no delivery of inspected tobacco from his warehouse except upon surrender of the certificate or note corresponding with the number of the hogshead.' By section 26, 'no tobacco of the growth of this state shall be passed or accounted lawful tobacco unless the same be packed in hogsheads not exceeding 54 inches in the length of the staves, nor exceeding 46 inches across the head, and the owner, or his agent, of tobacco packed in any hogshead of greater dimensions shall repack the same in hogsheads of the size herein prescribed, at his own expense, before the same shall be passed.' By chapter 228 of the Laws of 1872, the charge for outage is fixed at $2 for every hogshead not exceeding 1,100 pounds, and 12 1/2 cents additional on every 100 pounds over 1,100 pounds, to be paid by the shipper of the tobacco or his agent. In order to determine whether the statutory provisions in question are obnoxious to the objection made, their meaning must be ascertained. The act of 1864 requires the inspector to examine the hogshead to ascertain whether it is of the required dimensions, and then to inspect the tobacco itself by sampling the contents, and when this has been done, and the weight ascertained, the hogshead is passed. In regard to the addition made by the act of 1870, chapter 291, to section 41 of the act of 1864, the grower or purchaser of tobacco, packed in the county or neighborhood where it is grown, is permitted to export the same without having the hogshead opened for inspection by sampling its contents; but the act requires such hogshead to be marked with the name and residence of the owner, and it is made liable to the charge of outage as in other cases, and any one violating its provisions is subject to the penalty imposed by section 41 of the act of 1864. The act of 1870, in thus permitting the grower or purchaser of tobacco packed in the county or neighborhood where it is grown, to export the same without having the hogshead opened for inspection, does not dispense with any other requirement of the act of 1864 in regard to inspection. It provides, in express terms, that each hogshead thus packed shall be marked with the name and residence of the owner. It is necessary, therefore, that some one shall ascertain whether these requirements have been complied with, and whether the tobacco was, in fact, the growth of the county or neighborhood where it was packed. It also requires that such tobacco shall be liable to the same charge of outage as in other cases; and, as the charge of outage depends upon the weight of the hogshead, it is necessary that some one shall ascertain the weight of such hogshead, in order to determine the amount to be paid. It does not change, or in any manner dispense with, the statutory requirements in regard to the dimensions of the hogshead in which such tobacco is to be packed, and it is necessary that some one shall see that these requirements are complied with. These and other duties, it is obvious, are to be performed by the inspectors, and when they are performed the hogshead is to be passed and marked as provided by the act of 1864. When the words 'such tobacco so exported or carried out of this state without inspection' are read in connection with the preceding sentence, which permits the grower or purchaser to export such tobacco 'without having the same opened for inspection,' it is clear that the term 'without inspection' refers to inspection by opening the hogshead and sampling the contents. The act of 1872, c. 36, changes some of the provisions of the act of 1864, omits others, and in express terms repeals all acts or parts of acts inconsistent with its provisions. The penal clause of the act of 1864, as amended by the act of 1870, which makes it unlawful to carry out of the state in hogsheads tobacco raised in the state, except in hogsheads inspected, passed, and marked according to the provisions of the act, is omitted in the act of 1872; but there is nothing, either in the title or the general frame-work of the act, or in the manner in which the subject-matter is dealt with, to justify the conclusion that the legislature intended the act of 1872 as a substitute for all prior legislation on the subject. The provisions of such prior laws are essential to give completeness to the system of which the act of 1872 is but a part. That does not, it is true, make it unlawful to export tobacco raised in the state unless the same shall have been inspected and passed, but it does provide that no tobacco, the growth of the state, shall be passed or accounted lawful tobacco unless the same be packed in hogsheads of certain prescribed dimensions. It does not say, in so many words, that the tobacco raised in the state and intended for exportation shall be delivered at one of the state tobacco warehouses; but it does provide for the appointment of inspectors of tobacco, clerks, and other officials, with fixed salaries, and assigns them to the tobacco werehouses, with no duty to perform unless it be the inspection of tobacco. In thus declaing that no tobacco, the growth of the state, shall be accounted lawful tobacco unless packed in the manner prescribed by the act, it is plain the legislature meant it to be the duty of the inspectors appointed by the act to ascertain whether such tobacco was thus packed in conformity with the requirements of the statute, and this they could not do unless such tobacco should be delivered at the state tobacco warehouses. The legislature meant, and only meant, to select certain provisions from the public local law in relation to the inspection of tobacco, and to re-enact these in a public general law, and to leave such portion of the local law which it did not thus re-enact, and did not modify or repeal by inconsistent provisions, as existing parts of the local law. The act of 1872 did not modify or repeal section 41 of the act of 1864, as modified by the act of 1870, which constituted part of the local law; and under that section it was the duty of the plaintiff in error to have delivered the tobacco packed by him at one of the state tobacco warehouses, in order that the inspectors might ascertain whether it was packed in hogsheads of the proper dimensions, and whether it was packed in the county or neighborhood where it was grown, and marked as the statute directed. The legislature did not intend that merely marking the name of the grower or purchaser on the hogshead should release such grower or purchaser from the other requirements of the act. These views are those which were held by the court of appeals of Maryland in its opinion delivered in this case. 55 Md. 240. The result is that all that the act of 1870 does in regard to a grower or purchaser of tobacco raised in Maryland, who packs the same in hogsheads in the county or neighborhood where such tobacco is grown, and who exports it or carries it out of the state, is to dispense with the opening of such hogsheads for inspection, but that it does not dispense with any other requirement of the act of 1864 in regard to inspection; and that it is a part of such inspection for the inspector to see that the hogshead is marked with the name and place of residence of the owner, and to verify the claimed fact that the tobacco was raised in Maryland and packed in the county or neighborhood where it was grown, and to weigh the hogshead in order to determine the charge for outage, and to see that the hogshead conforms in dimensions to the requirement of the statute, so that the tobacco may be passed and accounted lawful tobacco. It is also apparent that not until the above and other duties have been performed by the inspectors can the hogshead be passed and marked as required by the act of 1864. This requires, in regard to the hogsheads specially mentioned in the proviso enacted in 1870 to section 41 of the act of 1864, that they be delivered at one of the state tobacco warehouses, and that the provisions of section 10 of the act of 1864 be observed; that is, that the inspector shall number each hogshead in succession, and enter the number in a book, with the time the hogshead is received, and the name, if known, of the conveyance by which it was brought to Baltimore, and the name of the owner or consignee of the tobacco, and the initials or other marks on the hogshead identifying it, and, on its removal, enter in a book the time of removal and the name of the person to whom it is delivered, and of the conveyance by which it is taken away; that, under section 12 of the act of 1864, it shall be inspected in all required particulars except opening it; that, under section 13 of that act, the inspector shall weigh the hogshead unopened and enter such weight in a book, with sufficient reference to its marks and numbers as previously recorded; that, under section 14 of that act, the inspector shall mark with a marking iron, on the side of each hogshead, its warehouse number and weight, and on each head its warehouse number; and that not until these things have been bone is the tobacco to be passed or accounted as lawful tobacco. The plaintiff in error contends that section 41 of the act of 1864, as re-enacted by the act of 1870, violates the constitution of the United States, because (1) it is a regulation of interstate and foreign commerce, and a law levying a duty on exports, and does not fall within the class of laws known as inspection laws, because the proviso enacts that the tobacco to which it refers need not be opened for inspection; (2) said section, even though it is an inspection statute, discriminates against the non-resident buyer and manufacturer of leaf tobacco, and in favor of the state buyer and manufacturer, in imposing burdensome regulations on tobacco intended for export, and laying a tax of at least two dollars a hogshead on such tobacco when exported, while tobacco manufactured within the state is free from such regulations and such tax, and thus it discriminates against interstate and foreign commerce in tobacco, and in favor of local manufacturers and the internal trade of the state; (3) said section discriminates between different classes of exporters of tobacco, in that it permits tobacco exported by persons who pack it in the county or neighborhood where it is grown, to be exported when marked with the full name and residence of the owner, without inspection other than the examination of the outsides of the hogsheads, while exporters of another class must have the contents of their hogsheads subjected to examination. The provisions of the constitution of the United States alleged to be violated are clause 2 of section 10 of article 1, before quoted, and that clause of section 8 of article 1 which provides that the congress shall have power 'to regulate commerce with foreign nations and among the several states.' The Maryland court held that the charge of outage in this case was an inspection duty, within the meaning of the constitution; that the state had the power to prescribe the dimensions of the hogshead in which tobacco raised in Maryland shall be packed, and to require such hogshead to be delivered at one of the state tobecco warehouses, in order that the inspectors may ascertain whether it conforms to the requirements of the law, and whether it is the true growth of the state, and packed by the grower or purchaser in the county or neighborhood where it was grown; and that the charge of outage, to reimburse the state for the expenses thereby incurred, and in consideration of storage of the hogshead, is in the nature of an inspection duty, within the meaning of the constitution. The contention of the plaintiff in error is that a law which otherwise would be an inspection law ceases to be such if no provision is made for opening the package containing the article and examining the quality of its contents. On this subject the Maryland court held that, in order to constitute an inspection law, an examination of the quality of the article itself is not necessary, but that to prepare the products of a state for exportation it may be necessary that such products should be put in packages of a certain form, and of certain prescribed dimensions, either on account of the nature and character of such products, or to enable the state to identify the products of its own growth, and to furnish the evidence of such identification in the markets to which they are exported. In opposition to these views, which appear to us to be sound, we are asked to hold that the provisions under consideration do not fall under the head of inspection laws, in a case where the question is presented without any finding of any facts to show that what may be thus necessary in regard to a product is not necessary in regard to tobacco, and with every presumption to the contrary arising out of the course of legislation, as to the inspection of tobacco, by the state of Maryland. The legislature of the state of Maryland, from the earliest history of the colony and since the formation of the state government, has made the inspection of tobacco raised in that state compulsory. That inspection has included many features, and has extended to the form, size, and weight of the packages containing the tobacco, as well as to the quality of the article. Fixing the identity and weight of tobacco alleged to have been grown in the state, and thus preserving the reputation of the article in markets outside of the state, is a legitimate part of inspection laws, and the means prescribed therefor in the statutes in question naturally conduce to that end. Such provisions, as parts of inspection laws, are as proper as provisions for inspecting quality, and it cannot be said that the absence of the latter provisions, in respect to any particular class of tobacco, necessarily causes the laws containing the former provisions to cease to be inspection laws. It is easy to see that the use of the precaution of weighing and marking the weight on the hogshead and recording it in a book is to enable it to be determined at any time whether the contents have been diminished subsequently to the original packing, by comparing a new weight with the original marked weight, or, if the marked weight be altered, with the weight entered into the warehouse book. The things required to be done in respect to the hogshead of tobacco in the present case, aside from any inspection of quality, are to be done to prepare and fit the hogshead, as a unit, containing the tobacco, for exportation, and for becoming an article of foreign commerce or commerce among the states, and are to be done before it becomes such an article. They are properly parts of inspection laws, within the definition given by this court in Gibbons v. Ogden, 9 Wheat. 203. In a note to the argument of Mr. Emmet in that case, at page 119, are collected references to many statutes of the states, in the form of inspection laws, showing what features have been generally recognized as falling within the domain of those laws—such as the size of barrels or casks, and the number of hoops on them; what pieces of beef or pork, and what quantity and size of nails, should be in one cask; the length, breadth, and thickness of staves and heading, lumber, boards, shingles, etc.; and the branding of pot and pearl ashes, flour, fish, and lumber, and the forfeiture of them, if unbranded. These were cited as instances of the exercise by states of the power to act upon an article grown or produced in a state, before it became an article of foreign or domestic commerce, or of commerce among the states, to prepare it for such purpose. It was in reference to laws of this character that it was said, in argument, in Gibbons v. Ogden, that the enactments seemed arbitrary, and were not founded on the idea that the things, the exportation of which was thus prohibited or restrained, were dangerous or noxious, but had for their object to improve foreign trade, and raise the character and reputation of the articles in a foreign market. It was in reference to such laws, among other inspection laws, that Chief Justice MARSHALL, in Gibbons v. Ogden, (page 203,) after remarking that a power to regulate commerce was not the source from which a right to pass inspection laws was derived, said: 'The object of inspection laws is to improve the quality of articles produced by the labor of a country; to fit them for exportation; or, it may be, for domestic use. They act upon the subject before it becomes an article of foreign commerce, or of commerce among the states, and prepare it for that purpose. They form a portion of that immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government; all which can be most advantageously exercised by the states themselves.' It was not suggested by the court that those particular laws were not valid exercises of the power of the state to fit the articles for exportation, or that in addition to, or even aside from, ascertaining the quality of the article produced in a state, the state could not define the form of the lawful package or its weight, and subject form and weight, with or without quality, to the supervision of an inspector, to ascertain that the required conditions in respect to the article were observed. In addition to the instances cited in Gibbons v. Ogden, the diligence of the attorney general of the state of Maryland has collected and presented to us, in argument, numerous instancesa In view of such legislation existing at the time the constitution of the United States was adopted and ratified by the original states, known to the framers of the constitution who came from the various states, and called 'inspection laws' in those states, it follows that the constitution, in speaking of 'inspection laws,' included such laws, and intended to reserve to the states the power of continuing to pass such laws, even though to carry them out and make them effective, in preventing the exportation from the state of the various commodities, unless the provisions of the laws were observed, it became necessary to impose charges which amounted to duties or imposts on exports to an extent absolutely necessary to execute such laws. The general sense in which the power of the states in this respect has been understood since the adoption of the constitution, is shown by the legislation of the states since that time, as collected in like manner by the attorney general of Maryland,b covering the Objection is made that the Maryland laws are not inspection laws, but are regulations of commerce, because they require every hogshead of tobacco to be brought to a state tobacco warehouse. But we are of opinion that, it being lawful to require the article to be subjected to the prescribed examination by a public officer before it can be accounted a lawful subject of commerce, it is not foreign to the character of an inspection law to require that the article shall be brought to the officer instead of sending the officer to the article. It is a matter as to which the state has a reasonable discretion, and we are unable to see that such discretion has been exercised in any such manner as to carry the statutes beyond the scope of inspection laws. There is another view of the subject which has great force. Recognized elements of inspection laws have always been quality of the article, form, capacity, dimensions, and weight of package, mode of putting up, and marking and branding of various kinds, all these matters being supervised by a public officer having authority to pass or not pass the article as lawful merchandise, as it did or did not answer the prescribed requirements. It has never been regarded as necessary, and it is manifestly not necessary that all of these elements should coexist in order to make a valid inspection law. Quality alone may be the subject of inspection, without other requirement, or the inspection may be made to extend to all of the above matters. When all are prescribed, and then inspection as to quality is dropped out, leaving the rest in force, it cannot be said to be a necessary legal conclusion that the law has ceased to be an inspection law. As is suggested in Neilson v. Garza, 2 Woods, 287, by Mr. Justice BRADLEY, it may be doubtful whether it is not exclusively the province of congress, and not at all that of a court, to decide whether a charge or duty, under an inspection law, is or is not excessive. There is nothing in the record from which it can be inferred that the state of Maryland intended to make its tobacco-inspection laws a mere cover for laying revenue duties upon exports. The case is not like that of Jackson Mining Co. v. Auditor General, 32 Mich. 488, where a state tax imposed on mineral ore exported from the state before being smelted was held to be a tax on interstate commerce, no such tax being imposed on like ore reduced within the state. The question of the right of Maryland, under the constitution of the United States, to require that the dimensions and gross weight of a hogshead containing tobacco grown upon its soil shall be ascertained by its officers before the tobacco shall be exported, is a question of law, because the question is as to whether such law is an inspection law. Moreover, the question as to whether the charges for such examination and its attendant duties are 'absolutely necessary,' was not before the state court, and was not passed upon by it, and cannot be considered by this court. It is urged, however, that the Mayland law is a regulation of commerce and unconstitutional, because it discriminates between the state buyer and manufacturer of leaf tobacco and the purchaser who buys for the purpose of transporting the tobacco to another state or to a foreign country. But the state, having the right to prescribe the form, dimensions, and capacity of the packages in which its products shall be encased before they are brought to, or sold in, the public market, has enacted (Laws 1872, c. 36, § 26) that no tobacco of the growth of the state shall be passed or accounted lawful tobacco unless it be packed in hogsheads of a specified size. This regulation covers all tobacco grown in the state and packed in hogsheads, without reference to the purpose for which it is packed. If the tobacco is to be dealt in within the limits of the state, the examination as to dimensions is properly left to the contracting parties, probably under the view that the seller for the home market will have a sufficient stimulus to observe the requirement of the law in a desire to maintain the reputation of his commodity. But if the tobacco is to be exported as lawful tobacco, the state may, with equal propriety, prescribe and enforce an examination by an officer, within the state, of a hogshead containing tobacco grown in the state and intended for shipment beyond the limits of the state, in order to ascertain, before the hogshead is carried out of the state, and before it becomes an article of commerce, that it is of the dimensions prescribed as necessary to make it lawful tobacco. In Cooley v. Board of Wardens, 12 How. 299, a law of Pennsylvania provided that a vessel not taking a pilot should pay half pilotage, but that this should not apply to American vessels engaged in the Pennsylvania coal trade. It was held that the general regulation as to half pilotage was proper, and that the exemption was a fair exercise of legislative discretion acting upon the subject of the regulation of the pilotage of the port of Philadelphia. The court said that, in making pilotage regulations, the legislative discretion had been constantly exercised, in this and other countries, in making discriminations, founded on differences both in the character of the trade and in the tonnage of vessels engaged therein. Any discrimination appearing in the present case is of the same character as that in the pilotage case, and fairly within the discretion of the state. Such discretion reasonably extends to exempting from opening for internal inspection an article grown in the state, when it is marked with the name of an ascertained owner, and to requiring that an article grown in the state shall be opened for internal inspection when it is not intended to be put on the market on the credit of an ascertained owner and is not identified by marks as owned by him. So, too, in the exercise of the same discretion, and of its power to prescribe the method in which its products shall be fitted for exportation, it may direct that a certain product, while it remains 'in the bosom of the country' and before it has become an article 'of foreign commerce or of commerce between the states,' shall be incased in such a package as appears best fitted to secure the safety of the package and to identify its contents as the growth of the state, and may direct that the weight of the package, and the name of the owner of its contents, shall be plainly marked on the package, and may also exempt the contents from inspection as to quality, when the weight of the package and the name of the owner are duly ascertained to be marked thereon. Such a law is an inspection law, and may be executed by imposing a 'tax or duty of inspection,' which tax, so far as it acts upon articles for exportation, is an exception to the prohibition on the states against laying duties on exports, the exception being made because the tax would otherwise be within the prohibition. Brown v. State, 12 Wheat. 419, 438. At the same time we fully recognize the principle that any inspection law is subject to the paramount right of congress to regulate commerce with foreign nations and among the several states. The general provision of the Maryland statute is that it shall not be lawful to carry out of the state, in hogsheads, any tobacco raised in the state, except in hogsheads which shall have been inspected, passed, and marked agreeably to the provisions of the act. These provisions include the doing of many things in addition to an inspection of quality. If the tobacco is grown in the state, and packed in the county or neighborhood where grown, it may be carried out of the state without having its quality inspected, if it be marked in the manner prescribed. But it still is necessary it should be inspected in all other particulars, and inspected also to ascertain that it was grown in the state and packed where grown, and is marked as required. If it does not answer the latter requirements it is to be further inspected as to quality. The necessity thus existing for subjecting the hogshead to inspection under all circumstances, a charge of some kind was proper for outage; that is, a charge payable, on withdrawing the hogshead, for labor connected with receiving and handling it, and doing the other things above mentioned. Such charge appears to be a charge for services properly rendered. The above views cover the objection made that the Maryland law discriminates between different classes of exporters of tobacco, and favors the person who packs it for exportation in the county or neighborhood where it is grown, as against other exporters. Whatever discrimination in this respect, or in respect of purchases for exportation, before referred to, results from any provisions of the law, is a discrimination which, we think, the state has a right to make, resulting, as it does, wholly from regulations which affect the article before it has become an article of commerce, and which attach to it as and when it is grown, and before it is packed or sold. The tobacco is grown with these regulations in force, and the state has a right to say what shall be lawful merchantable tobacco. This is really all that has been done in regard to the tobacco in question. In this case no inspection is involved except that of tobacco grown in Maryland, and we must not be understood as expressing any opinion as to any provisions of the Maryland laws which refer to the inspection of tobacco grown out of Maryland. The judgment of the court of appeals of Maryland is affirmed.

106.US.571

1. Where a judgment in a State court is rendered against one shortly thereafter declared to be a bankrupt, a writ of error to that judgment brought by his assignee is a suit, within the meaning of section 6057 of the Revised Statutes. 2. The limitation of time in that section applies to a suit by the assignee to recover a debt or other moneyed obligation, as well as to a controversy concerning property or rights of property to which there are adverse claims.

This is a writ of error to the supreme court of Illinois. In the course of a complicated litigation between Samuel J. Walker and his creditors, it became a question whether the International Bank, which was a party to the litigation, had a just and paramount right to certain securities held by it as collateral to debts due by him to the bank. These were promissory notes, secured by mortgage on real estate. In the progress of the case the bank filed its cross-bill, alleging that they held the notes and mortgage not only as security for the specific loan made on them at the time they were received, but for a large balance due to the bank from Walker, and praying for a decree for this balance. Walker denied this, and asserted that by reason of usury he had overpaid the bank, which was indebted to him. The result was a decree in favor of the bank, finding the amount due on the collateral notes to be $23,116.66; amount due on Walker's three principal notes to the bank, $17,092.86; and the amount due on the entire indebtedness of Walker to the bank, $172,474; and that the sum to be realized from the collaterals should be first applied on the three notes aforesaid, amounting to $17,092.76, and the remainder on the general balance due the bank. This decree was rendered on the twenty-fifth day of April, 1878. Shortly afterwards Walker was adjudged to be a bankrupt, and Robert E. Jenkins, the plaintiff in error here, became his assignee. On March 5, 1881, he sued out a writ of error from the court of appeals for the first district of Illinois, on which this decree was reversed, and the bank having removed the case to the supreme court of the state, the decree of the court of appeals was reversed, on the ground that Jenkins, the assignee, had not brought his writ within the two years allowed to him by the bankrupt law. He brings the case to this court by writ of error to the supreme court of Illinois, in which the only question that we can consider is the correctness of the ruling of that court on that point. Without searching the record for the precise date at which Jenkins became assignee of Walker, and as such had authority to assert his rights, it is conceded that it was more than two years prior to any movement of his to bring the decree of the circuit court of Cook county before the appellate court. The question was raised in the argument of the case, in the supreme court of Illinois whether the writ of error sued out by Jenkins from the court of appeals was the beginning of a suit, or was so far a mere continuance of the former suit that the language of the act of congress did not apply. That court held, in accordance with its own previous decisions, that a writ of error was the beginning of a new suit, and as this was a question concerning the nature and effect of a writ error in their own courts, it would seem that it is not reviewable here, or, if so, we should follow the decisions of that court on the subject. We are, however, satisfied that, within the meaning of the limitation clause of the bankrupt law, this first appearance of the assignee, more than two years after the decree of the court, and the termination of the litigation between Walker and the bank, is a suit brought by him after that time. There remains, however, the question, mainly argued before us, whether the suit thus commenced between the assignee of Walker and the bank was one involving an adverse interest touching any property or rights of property transferable to or vested in the assignee. We can see but little reason to doubt that, so far as the controversy related to the right to the collateral securities resting on the mortgage, it was a suit touching adverse interests to property; the property being the notes, and the equitable interests in the real estate mortgaged to secure them, and the adverse claims being that coming to Jenkins as assignee of Walker, and the claim of the bank. But in that decree there was an adjudication against Walker of a debt to the bank of more than $150,000 after these collaterals had been applied in payment of the debt thus established, and this decree would be evidence, whether conclusive or not, of the right of the bank to share in the dividends of the bankrupt's estate. So that, apart from the collaterals, here was a decree for money which the assignee was interested in reversing if he came in time. We must, therefore, inquire whether, as to this personal judgment, the assignee is barred by the limitation of the bankrupt law. This question is one which has received the consideration of many of the courts of bankruptcy in this country, but with no unanimity in the result, and its solution depends upon the construction of section 5057 of Revised Statutes. It reads thus: 'No suit, either at law or in equity, shall be maintainable in any court between an assignee in bankruptcy and a person claiming an adverse interest touching any property, or rights of property, transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee. And this provision shall not in any case revive a right of action barred at the time an assignee is appointed.' It is asserted by appellants that this limitation can have no application to a case where an assignee is suing to recover on a simple debt or other money obligation, and as the sentence stands in this section there is plausibility in the argument. It is, however, true, in one sense, that debts are property, and this sense of the word is coming more into use in legislation every day. If it be permissible to hold that it was so used in this act, then the interest of the assignee in the debts due to the bankrupt is an interest adverse to the parties who have to be sued on them before they will pay, and the debts claimed to be due by the bankrupt are matters in which the interest and the duty of the assignee, when they come into contest, are adverse to the creditor. If a debt secured by a mortgage raises, as it unquestionably does when a suit is brought to foreclose it, an interest adverse to the mortgagor, or to some purchaser from him of the equity of redemption, it would be a strange construction which requires the assignee to bring his foreclosure suit to enforce a debt, well secured, within the two years, while as to a simple note, unsecured, he can sue at any time, unless barred by the statute of the state. No reason can be seen for such a discrimination. Assuming that there is some ambiguity in section 5057, as we find it in the Revised Statutes, we may be permitted to examine the connection in which it stood in the original bankrupt act. On reference to that it will be found that it was a part of the second section of that act—the one which conferred upon and defined the jurisdiction of the circuit courts in bankruptcy cases. The part of the section pertinent to the matter in hand is this: 'Said circuit courts shall also have concurrent jurisdiction with the district courts of the same district of all suits, at law or in equity, which may or shall be brought by the assignee in bankruptcy, claiming an adverse interest, or by such person against said assignee, touching any property or rights of property of said bankrupt transferable to or vested in such assignee; but no suit at law or in equity shall in any case be maintainable by or against such assignee, or by or against any person claiming an adverse interest touching the property or rights of property aforesaid, in any court whatsoever, unless the same shall be brought within two years after the cause of action shall have accrued for or against such assignee: provided, that nothing herein contained shall revive a right of action barred at the time such assignee is appointed.' We are not aware that it has ever been held that this section did not confer upon the assignee the right to bring a suit, whether it was at law or in equity, to recover a debt or other moneyed obligation in the circuit court of the district. If any such doubt was ever entertained, it was put at rest by the third section of the act of June 22, 1874, which was an act amending the bankrupt law of 1867 in many particulars. This section declares that after the words 'adverse interests,' in line 12 of the section we have quoted, should be inserted, 'or owing any debt to such bankrupt,' thereby making it clear that the jurisdiction did extend to the collection of debts owing to the bankrupt. The limitation clause of the section, however, needed no amendment, for it applied to all suits brought in any court, federal or state, by or against the assignee; and using the word 'or' distributively, it applied to all suits touching an interest in property transferable to the assignee, no difference who was the suitor. The reason of this is that there might be suits brought concerning property or rights of property vested in the assignee, in which he was not a necessary party, as ejectment against his tenant, or foreclosure of liens paramount to his, to which the plaintiff did not choose to make him a party. It was intended to say that in any such case, in any court where the suit touched property or rights to property of the bankrupt passing to the assignee, it would be a good defense that it was not brought within two years after the right of action accrued. This construction is consistent with the language of the original statute, and with the policy of it as declared by this court in Glover v. Bailey, 21 Wall. 342, and repeated in numerous cases since. 'It is obviously one of the purposes of the bankrupt law,' says the court, that there should be a speedy disposition of the bankrupt's assets. This is only second in importance to securing equality of distribution. The act is filled with provisions for quick and summary disposal of questions arising in the progress of the case, without regard to usual modes of trial attended by some necessary delay. Appeals in some instances must be taken within 10 days.' To prevent the estate being wasted in litigation and delay, 'congress has said to the assignee, you shall begin no suit two years after the cause of action has accrued to you, nor shall you be harassed by suits when the cause of action has accrued more than two years against you. Within that time the estate ought to be settled up and your functions discharged, and we close the door to all litigation not commenced before it has elapsed.' The language of the Revision in section 5057, though slightly varied from that of the original act, was not intended to give a different meaning. As it is susceptible of the interpretation that no suit shall be brought by or against the assignee, or by or against any person, touching an adverse interest in property transferred to him by the assignment, which is clearly the meaning of the original act, this latter construction must be given to the section under consideration. The judgment of the supreme court of Illinois is affirmed in this case, and also in the three other cases between Jenkins and the bank and other parties, which depend on the same question.

108.US.368

A railroad company agreed with A that he might erect a building on property of the company, paying a ground rent therefor for a period terminable by notice, and that at the expiration or termination of the term the company would take the building at a valuation to be fixed by arbitration. A entered into possession, and constructed a valuable building, and then conveyed his interest in the term to his wife. A gave a note to B in which the wife joined as surety and the husband and wife executed a mortgage of the premises to B to secure payment of the note. A and his wife gave notice to terminate the term and called for an arbitration to fix the value of the improvements. Arbitration was had, and a price was fixed by the arbitrators as the sum to be paid for the improvements under the agreement and the date when the same was payable, and judgment was entered accordingly in a court of record. Pending these proceedings A died. At the time of the arbitration there was rent in arrear, and it was agreed that this should not enter into the arbitration, but should be subject to future adjustment. The company neglecting to pay the sum fixed by the arbitrators, the wife remained in possession after A's death, receiving the rents and profits, and attempted to enforce the judgment by an execution. On abill in equity filed by the company to restrain the enforcement of the judgment and for an account, and a bill of interpleader making B a party for the protection of his rights, Held, 1. That the wife was entitled to interest on the judgment sum from the date fixed in the decree for the payment, and was bound to account for the rents and profits of the premises which were received, or might reasonably have been received by her after the date fixed by the arbitrators for the payment of the money from the railroad company. 2. That B's lien was valid under the laws of Mississippi, against the income of the property. And that, there being two funds in the possession o the court, one the decree and the other the interest upon the decree, a court of equity should so marshal the assets as to pay the lien of B from the interest on the decree.

The contention of the appellant is that, having obtained a decree for the value of the hotel and improvements built by John W. Scruggs upon the lands of the railroad company, with damages for the appeal, and interest, to be paid upon the surrender by her of the hotel and improvements to the railroad company, she was entitled to the payment of her decree, with interest, and as long as the railroad company failed to pay the decree, was not chargeable with the rents or the value of the occupancy of the premises while she retained possession. We cannot assent to this claim. It appears, from the agreement to submit to arbitrators, that both parties—the railroad company on the one hand, and John W. Scruggs and Narcissa, his wife, to whom he had conveyed his leasehold and improvements, on the other—had agreed that the property should be surrendered to the railroad company, and that, in pursuance of the original contract between John W. Scruggs and the railroad company, the latter was to pay the value of the improvements. It was mainly to fix the value of these improvements that the reference to arbitrators was made, and it was agreed that on the payment of the sum so fixed Scruggs and his wife should surrender the property to the railroad company, and the amount so fixed should 'be a lien on said property.' The arbitrators decided that on the payment of the sum awarded by them, Mrs. Scruggs should deliver the possession of the hotel to the railroad company. In her bill filed to enforce this award, Mrs. Scruggs prays that the railroad company may be compelled to pay the award, and that 'her lien for the same on said property may be enforced.' The court in which her bill was filed made a decree to the effect that Mrs. Scruggs had a lien on the property for the amount of said award, with interest thereon from January 21, 1871, ordered its payment within 30 days, and in default of payment directed that the property should be sold and the proceeds applied to the payment of the amount due on the award. This decree was in all respects affirmed by the supreme court of Mississippi. We think that upon these facts Mrs. Scruggs must in equity be treated as if she was a mortgagee in possession. All the parties and the chancery and supreme courts have treated the sum awarded Mrs. Scruggs as a lien upon the property, and it was decreed, and no one disputed, that she was entitled to retain possession until her lien was discharged. Treating her as a mortgagee in possession, she is accountable for the net rents and profits of the estate. If her possession was by tenant, she is accountable for such net rents and profits as she could with reasonable diligence have received. Moore v. De Graw, 1 Halst. Ch. 348; Benham v. Rowe, 2 Cal. 387; Kellogg v. Rockwell, 19 Conn. 446; Harrison v. Wyse, 24 Conn. 1; Reitenbaugh v. Ludwick, 31 Pa. St. 131; Breckenridge v. Brook, 2 A. K. Marsh. 335; Tharp v. Fitz, 6 B. Mon. 6; Anthony v. Rogers, 20 Mo. 281. There is no equity in the contention of Mrs. Scruggs that she should receive interest on the debt secured by her lien, and not account for the rents and profits of the property on which her lien rested while it was in her possession. She says that the railroad company might have had immediate possession by paying the amount of the award. So any mortgagee in possession might say that the mortgagor could take possession on paying off the mortage debt; but this does not excuse the mortgagee from accounting for the rents and profits of the mortgaged property received by him. It appears that the railroad company had ground for refusing to pay the sum awarded by the arbitrators as the value of the property. The only question submitted to the arbitrators was the true construction of the contract between John W. Scruggs and the railroad company, and the value of the property, or rather, as the arbitrators understood it, the value of the improvements placed by John W. Scruggs on the land of the railroad company. They were not authorized to adjust and settle the accounts between the railroad company and Scruggs. When, therefore, Mrs. Scruggs filed her bill to enforce the award, it was admitted by her counsel that the matter of the ground rent was not included in the award, and that the same ought to be deducted from the amount awarded by the arbitrators, and that she should be permitted to set off as against such rents any amount due by the railroad company for board of employes, the said amount to be adjusted by reference to the master of the court. The award did not, therefore, settle the controversy between the parties. The railroad company was justified in refusing to pay the award until the deductions therefrom, to which it was admitted that it was entitled, should be ascertained, and in defending the suit brought by Mrs. Scruggs to enforce the payment of the entire award. While this litigation was pending, the rents and profits actually received in cash by her were $10,514, and she herself occupied the premises in person for two years. The court below found that there was due the railroad company, by reason of rents incurred by Mrs. Scruggs and the occupancy of the premises by her, the sum of $17,414.50. The testimony in the record fully sustains this finding. As Mrs. Scruggs insisted that she should have interest on the amount decreed her by the chancery and supreme courts of Mississippi, she was not entitled also to claim the rents of the premises. The case, therefore, stands thus: The railroad company was indebted to Mrs. Scruggs in the sum of $31,666, which was a lien upon the premises, and Mrs. Scruggs was in possession. On the other hand, the amount of the decree and interest, it was admitted, were subject to be reduced by the ground rents due to the railroad company. Mrs. Scruggs, who was shown to be insolvent, was proceeding to collect by execution the full amount of her decree, with interest; the railroad company was compelled, in order to protect itself from loss, to file the bill in this case to have the decree credited with the amount due for the ground rents. While this litigation was pending, Mrs. Scruggs received in cash rents to the amount of $10,514, and occupied the premises herself two years. She was clearly liable to account for the rents received by her, and for a reasonable rental while the premises were actually occupied by her. The court below did not charge her with a dollar for which she was not accountable. So far, therefore, as the decree relates to the controversy between her and the railroad company, it is a just and proper decree. It remains to consider that part of the decree by which the debt claimed by J. H. Viser was ordered to be paid out of the money due from the railroad company on the decree in favor of Mrs. Scruggs. After the bill of interpleader, filed by the railroad company, Viser filed his cross-bill against the company and Mrs. Scruggs, in which he alleged that on May 11, 1869, John W. Scruggs and Narcissa, his wife, executed to him a mortgage upon the leasehold and improvements thereon, known as the Scruggs House, of which said Narcissa was then the owner, to secure a note dated the same day as the mortgage, made by them for the payment to him of $5,000, 12 months after date, and prayed that the railroad company might be compelled to pay to him, out of the moneys due from it to Mrs. Scruggs, the amount due him on said note and mortgage. This relief was resisted by Mrs. Scruggs on the ground that at the date of the note and mortgage she was a feme covert, and incompetent, under the law of Mississippi, to incumber her property for her own or her husband's debts. In the suit which Mrs. Scruggs brought in the chancery court of Alcorn county to enforce the award of the arbitrators, Viser, who had been made a party defendant, had filed his answer and cross-bill, setting up said note and insisting that the mortgage given to secure it was a lien on said property. Upon appeal to the supreme court of Mississippi, that court decided that the mortgage was a good lien on the income of the property covered thereby. Viser v. Scruggs, 49 Miss. 705. The property covered by the mortgage was represented by the decree rendered in favor of Mrs. Scruggs against the railroad company for $31,666. The income of the decree represented by the interest was, as appears by the report of the master, ample to pay the demand of Viser. There was no application of the income until the court made the final decree in this case. There were then two funds, the principal and the interest of the decree. Viser had a lien on the interest, and the demand of the railroad company was payable out of either principal or interest. Following, therefore, the practice of courts of equity in marshaling securities, (Aldrich v. Cooper, 8 Ves. 394,) the court directed the payment of Viser's lien out of the interest. In doing this no injustice was suffered by Mrs. Scruggs. The method adopted for calculating the amount due on the decree was according to the established rules in such cases. The debt due Viser was clearly proven. It was payable out of a fund which in effect was in possession of the court, and the court was right in ordering it to be paid. It is contended for Mrs. Scruggs that the debt of Viser could only be satisfied by laying hold of the corpus of the property by a receiver, and through him collecting the income and applying it. But in this case there was no necessity for a receiver, for the property and its income were virtually in the hands of the court. The appointment of a receiver was. under the circumstances of the case, unnecessary and impracticable. The property was a decree of court, of which a receiver could not take possession. Complaint is made by appellants because the decree of the circuit court for the payment of Viser's demand was rendered, not only against Mrs. Scruggs, but against the sureties on the refunding bond given by her. It is said that the bond was payable to the railroad company, and the court was not justified in rendering a decree in favor of Viser against the sureties. The bond took the place of $10,000 which was virtually in possession of the court to do with as justice and equity might require. The court disposed of the sum payable on the bond as if it had been so much money in the registry of the court. It is true, the bond was payable to the railroad company. But the amount decreed to be paid to Viser was deducted from the sum due the railroad company on the refunding bond, and the appellants have no ground of complaint. We are of opinion that the decree of the circuit court was in all respects right, and it must therefore be affirmed. FIELD and MATTHEWS, JJ., did not sit in this case, and took no part in its decision.

108.US.568

Where a party seeks a writ of mandamus from a State court to compel a city government of which he is a creditor to apply to the payment of his debt the proceeds of a proposed sale of city property, and to exhaust its powers of taxation, and continue to do so until the relator's debt is paid, and the State court denies the prayer as to the application of the proceeds of sale of the property, on the ground that the State laws require it to be applied to the retirement of other debts of the city, and grants the writ as to the residue of the prayer, no federal question arises.

We have no jurisdiction in this case. No title, right, privilege, or immunity set up or claimed by the relator under the constitution of the United States has been denied him by the judgment of the court below. The prayer of the petition for mandamus was, among other things, that, in order to secure a sufficient fund to provide for the payment of certain judgments in favor of the relator against the city of New Orleans, the council of the city might be required, if necessary, to 'exhaust their powers of taxation, and continue so to do until relator's judgment is paid and satisfied.' No request was made in the petition for a determination of the extent of the power of taxation for the purpose specified. A judgment was entered in the court of original jurisdiction granting the writ in the exact form prayed for. This judgment was affirmed by the supreme court of the state on appeal. After the judgment of affirmance was entered, a rehearing was asked, in order that the judgment of the court of original jurisdiction might be made more clear and specific. This was refused. No right to any specific rate of taxation has been denied. That question has been left unsettled, and there was nothing in the pleadings which required the court to do more than it has done. As the judgment is for a writ requiring the council to do all it has in law the power to do to raise the money to pay the relator's demand, no right has been denied. While the court might have defined in more exact terms the precise power to be exercised, its omission to do so is not ground for appeal to our jurisdiction. It follows that the writ of error in this case must be dismissed for want of jurisdiction, and an order to that effect is made.

107.US.631

A State court, in which an action against a bankrupt upon a debt provable in bankruptcy is pending, must, on his application under sect. 5106 of the Revised Statutes, stay all proceedings to await the determination of the court in bankruptcy on the question of his discharge, unless unreasonable delay on his part in endeavoring to obtain his discharge is shown, or the court in bankruptcy gives leave to proceed to judgment for the purpose of ascertaining the amount due; even if an attachment has been sued out in the action more than four months before the commencement of the proceedings in bankruptcy, and has been dissolved by giving bond with sureties to pay the amount of the judgment which might be recovered. And if the highest court of the State denies the application, and renders final judgment against the bankrupt, he may, although he has since obtained his certificate of discharge, bring a writ of error, and his assignee may be heard here in support of the writ.

The material facts, as appearing by the record of this case in the supreme court of Illinois, are as follows: On the sixteenth of March, 1877, the original plaintiffs, in accordance with the statutes of Illinois, and upon the affidavit of one of them that the defendant was indebted to them in the sum of $8,264 for services as attorneys at law, and that he was a resident of Illinois, and was about fraudulently to conceal, assign, or otherwise dispose of his property or effects so as to hinder or delay his creditors, sued out from the circuit court of Cook county a writ of attachment against him, upon which his real estate was attached. On the twenty-eighth of March, 1877, in accordance with those statutes, he dissolved the attachment by giving bond with sureties to pay to the plaintiffs, within 90 days after judgment, the amount of any judgment which might be rendered against him on a final trial in the suit. On the twelfth of April, 1878, a verdict was returned for the plaintiffs in the sum of $3,500, and the defendant moved the court to set it aside and grant a new trial. On the seventh of May, 1878, hefiled in the cause a duly-attested copy of an order, dated the first of May, 1878, adjudging him a bankrupt under the bankrupt act of the United States. On the eleventh of May, 1878, before judgment on the verdict, the defendant suggested the adjudication in bankruptcy (which was admitted) and applied to the state court, under section 5106 of the Revised Statutes, for a stay of proceedings to await the determination of the court in bankruptcy upon the question of his discharge. On the as well as the motion for a new trial, as well as the motion for a new trial, and rendered judgment against him on the verdict, and afterwards allowed a bill of exceptions which stated the facts above recited. That judgment was affirmed by the appellate court for the first district of Illinois on the nineteenth of November, 1878, and by the supreme court of Illinois on the eighteenth of November, 1879. The opinion of the supreme court is reported in 93 Ill. 77. On the sixth of January, 1880, the defendant sued out this writ of error. At October term, 1880, of this court, the defendants in error moved to dismiss the writ of error, because at the time it was sued out the plaintiff in error had been discharged from the obligation of the debt to them; and the assignee in bankruptcy moved to substitute his name for that of the bankrupt as plaintiff in error. By the papers submitted with these motions, it appeared that the assignment in bankruptcy was made on the seventeenth of June, 1878, and a certificate of discharge granted to the bankrupt on the fifteenth of September, 1879. The court overruled both motions, but granted leave to the assignee to be heard by counsel at the argument on the merits, as to all matters affecting the estate of the bankrupt. The record clearly shows that a privilege under section 5106 of the Revised Statutes was claimed by the original defendant, and was denied by the highest court of the state. There can therefore be no doubt of the authority of this court to revise the judgment. 'No creditor whose debt is provable shall be allowed to prosecute to final judgment any suit at law or in equity therefor against the bankrupt, until the question of the debtor's discharge shall have been determined; and any such suit or proceedings shall, upon the application of the bankrupt, be stayed to await the determination of the court in bankruptcy on the question of the discharge; provided there is no unreasonable delay on the part of the bankrupt in endeavoring to obtain his discharge; and provided also that, if the amount due the creditor is in dispute, the suit, by leave of the court in bankruptcy, may proceed to judgment for the purpose of ascertaining the amount due, which amount may be proved in bankruptcy, but execution shall be stayed.' The terms of this enactment are as broad and as peremptory as possible. 'No creditor whose debt is provable shall be allowed to prosecute to final judgment' any suit thereon against the bankrupt; and such suit 'shall, upon the application of the bankrupt, be stayed.' This provision, like all laws of the United States made in pursuance of the constitution, binds the courts of each state as well as those of the nation. Upon the application of the bankrupt to the court, state or national, in which the suit is pending, it is the duty of that court to say the proceedings 'to await the determination of the court in bankruptcy on the question of the discharge,' unless there is unreasonable delay on the part of the bankrupt in endeavoring to obtain his discharge, or unless, the amount of the debt being in dispute, the United States court sitting in bankruptcy gives leave to proceed to judgment for the purpose of ascertaining that amount. If neither the bankrupt nor his assignee in bankruptcy applies for a stay of proceedings, the court may of course proceed to judgment. Doe v. Childress, 21 Wall. 642; Eyser v. Gaff, 91 U. S. 521; Norton v. Switzer, 93 U. S. 355. The stay does not operate as a bar to the action, but only as a suspension of proceedings until the question of the bankrupt's discharge shall have been determined in the United States court sitting in bankruptcy. After the determination of that question in that court, the court in which the suit is pending may proceed to such judgment as the circumstances of the case may require. If the discharge is refused, the plaintiff, upon establishing his claim, may obtain a general judgment. If the discharge is granted, the court in which the suit is pending may then determine whether the plaintiff is entitled to a special judgment for the purpose of enforcing an attachment made more than four months before the commencement of the proceedings in bankruptcy, or for the purpose of charging sureties upon a bond given to dissolve such an attachment. But, so long as the question of the discharge in bankruptcy is undetermined, the suit cannot, against the objection of the bankrupt or his assignee in bankruptcy, proceed for any purpose, except in one of two events an unreasonable delay of the bankrupt in endeavoring to obtain his discharge, or an order of the court in bankruptcy granting leave to proceed for the single purpose of ascertaining the amount due. The result required by the very words of the statute is confirmed by a consideration of the reasons upon which it rests. Its purpose is not merely to protect the bankrupt, in case he obtains a certificate of discharge, from having the original cause of action against him merged in a judgment, the right of action upon which might not be barred by the discharge; but to prevent him, so long as the question of his discharge is undetermined, from being harassed by suit upon any debt provable in bankruptcy, whether it would or would not be barred by a certificate of discharge, and whether the attachment or other security obtained in the suit would or would not be affected by the proceedings in bankruptcy; and also to afford to the assignee in bankruptcy, to whom all the property of the bankrupt has passed, opportunity to assume the defense of the suit, and contest the existence and amount of the plaintiff's claim, and the validity of his attachment. This view, which is supported alike by the words and by the reason of the statute, is in accordance with the preponderance of the decisions in the highest courts of the several states, and in the district courts of the United States, as shown by the cases cited in the argument.* The plaintiffs' debt being provable in bankruptcy, no unreasonable delay on the part of the bankrupt in endeavoring to obtain his discharge being shown, and the court in bankruptcy having granted no leave to proceed to judgment for the purpose of ascertaining the amount due, the decision of the state court, denying the application, made by the bankrupt before judgment, for a stay of proceedings to await the determination of the question of his discharge, and rendering a general judgment against him, was erroneous, and he had the right to sue out and prosecute a writ of error to reverse it. The assignee in bankruptcy has also been permitted to be heard in support of the writ of error, because of his authority and duty to defend the estate of the bankrupt against claims and attachments which he believes to be invalid. The result is that the judgment of the supreme court of Illinois must be reversed, and the case remanded to that court for further proceedings in conformity with this opinion. The judgment of the state court being reversed for the reason that it denied the stay of proceedings to which the original defendant was entitled under the provisions of the bankrupt act until the question of his discharge in bankruptcy should have been determined, there is no occasion to consider the question, (which may perhaps depend upon the statutes, or the practice of the state,) whether it will be within the authority of the court in which the suit is pending, now that the defendant has obtained his discharge in bankruptcy, to render a special judgment in favor of the plaintiffs for the purpose of charging the sureties on the bond given to dissolve the attachment; or any other question which may hereafter arise upon the production by the defendant of his certificate of discharge, or upon the suggestion of the assignee in bankruptcy. Judgment reversed.

108.US.237

A decree is final for the purposes of appeal when it terminates the litigation between the parties, and leaves nothing to be done but to enforce the execution which has been determined. Several cases on this point decided at this term referred to and approved. An assignee in bankruptcy filed a bill to set aside, as fraudulent, conveyance of real estate of the debtor made before the bankruptcy and a mortgage put upon the same by the owner after the sale, and to restrain the foreclosure of the mortgage. The court denied the relief asked for, and ordered any surplus that might remain above the"m ortgage debt after sale or foreclosure, to be paid to the complainant. The assignee appealed to the circuit court: Held, That the decree appealed from was a final decree, disposing of the litigation between the parties.

casion at the present term, in Bostwick v. Brinkerhoff, 1 SUP. CT. REP. 15; Grant v. Phoenix Mut. Life Ins. Co. Id. 414; and St. Louis, I. M. & S. R. Co. v. Southern Exp. Co., ante, 6, to state the rule applicable to the determination of the question here involved, and we there say: 'A decree is final for the purpose of an appeal * * * when it terminates the litigation between the parties, and leaves nothing to be done but to enforce by execution what has been determined.' Under this rule, we think, this appeal was well taken. The decree settled every question in dispute between the parties, and left nothing to be done but to complete the sale under the proceedings in the state court for foreclosure, and hand over to Norton any surplus of the proceeds there might be after satisfying the debt due Frellsen, as stated in the process under which the sale was made. The case stands precisely as it would if Frellsen were proceeding in the district court for the foreclosure of his mortgage, and a decree had been entered establishing his rights, ascertaining the amount due to him, and ordering a sale of the property and the payment to Norton of the surplus after discharging the mortgage debt. Here the bill was filed by Norton to set aside the proceedings for foreclosure and obtain a conveyance of the mortgaged property. The court refused to set aside the proceedings or to order a conveyance, but did order the sale to go on, and that the proceeds, after the mortgage was satisfied, be paid to Norton. It adjudged the case on the merits in favor of Frellsen as against Norton, and in favor of Norton as against Hood. The bill was not dismissed in form because it asked relief both as against Frellsen and Hood, and relief was granted as against Hood. It was in legal effect dismissed as to Frellsen when the decree was entered in his favor on all the questions in which he was interested. The writ of mandamus asked for is granted, but without costs.

106.US.532

1. The only questions open for examination on a bill of review for errors of law appearing on the face of the record are such as arise on the pleadings, proceedings, and decree, without reference to the evidence in the cause. 2. The truth of matters of fact alleged in such a bill is not admitted by a demurrer thereto, if they are inconsistent with the decree. 3. Where the decree in a foreclosure suit adjudged the sale of the mortgaged lands, the alleged new matter discovered, if it relates to the proceeding in selling them, can have no effect on the decree.

The only questions open for examination on a bill of review for error of law appearing on the face of the record are such as arise on the pleadings, proceedings, and decree, without reference to the evidence in the cause. This has been many times decided in this court. Whiting v. Bank of U. S. 13 Pet. 6; Putnam v. Day, 22 Wall. 66; Buffington v. Harvey, 95 U. S. 99; Thompson v. Maxwell, Id. 397. A demurrer admits only such facts as are properly pleaded. As questions of fact are not open for re-examination on a bill of review for errors in law, the truth of any fact averred in a bill of review inconsistent with the decree is not admitted by a demurrer, because no error can be assigned on such a fact, and it is, therefore, not properly pleaded. This disposes of the first, second, third, fourth, and fifth specifications of error presented in this bill of review. They are all errors of fact, and can only be determined by a reference to the evidence. It nowhere appears from 'the bill, answer, and other pleadings, together with the decree,' constituting what Mr. Justice STORY said, in Whiting v. Bank of U. S. supra, 'is properly considered as the record,' that there was any usury in the case, or that the appellants had not waived their homestead rights as alleged in the bill. All the allegations of error on the face of the record are equally bad. It is stated in the decree that all the material averments of fact in the bill were proved, and on these facts the priority of the lien of the complainant was established. All the issues were thus disposed of, and the decree was in favor of the complainant and against all the defendants. The omission of the name of McGregor from among those against whom it was stated in the decree the bill was taken as confessed, is unimportant. If, as is stated in the brief of counsel for the appellant, he was served with subpoena, and did not plead, answer, or demur to the bill, the decree was in fact proconfesso as to him, and he is as much bound as if he had been particularly named. All the new matter alleged to have been discovered relates to the proceedings in making the sale, and can have no effect on the original decree. So far as the decree confirming the sale is concerned, the matter is not new, for the addition to the transcript, filed by consent, shows that all the affidavits now relied on to establish the new facts were actually read in evidence on the hearing of a motion, made before the confirmation, to set aside the sale. These affidavits cannot be considered on a bill of review to reverse the decree of confirmation for errors appearing on the face of the record, because as evidence they form no part of the record which can be looked into on such a review. But, as part of the exhibits annexed to a bill of review for alleged discovery of new matter, they may be referred to for the purpose of determining whether, upon the showing of the complainant in review, the matter alleged to be new first came to his knowledge after the time when it could have been made use of at the original hearing. This disposes of the case; and the decree of the circuit court dismissing the bill of review is affirmed.

107.US.85

Under schedules B and D of sect. 2504 of the Revised Statutes, ale and beer imported in bottles is subject to a duty of thirty-five cents per gallon, and a further duty of thirty per cent ad valorem isim posed on the bottles.

This suit was brought to recover back customs duties paid under protest on glass bottles containing beer and ale, imported from abroad. The collector exacted a duty of 30 per cent. ad valorem on the bottles. The plaintiffs contended that as a duty of 35 cents per gallon had been paid on the contents of the bottles, such duty covered all the duty which the law imposed on the bottles. There was a verdict for the defendant under a charge by the court to the jury that, although a duty of 35 cents per gallon had been paid on the contents of the bottles, a further duty of 30 per cent. ad valorem was chargeable on the bottles. After a judgment for the defendant the plaintiffs sued out this writ of error. The importations in question were made in February and March, 1881. In order to a clear understanding of the statutory provisions in force at that time it will be useful to trace the course of legislation on the subject. It was enacted by section 3 of the act of January 29, 1795, (1 St. at Large, 411,) that the duty on any wines imported into the United States shall not be less than 10 cents per gallon, 'and that the bottles in which any liquor is imported shall be subject to the payment of the like duty as empty bottles.' By section 8 of the act of August 30, 1842, (5 St. at Large, 559,) duties were imposed on various liquors and wines, in casks and in bottles, at so much per gallon, the duty on importations in casks being never higher than on importations in bottles, and generally much lower, and it was enacted that 'when wines are imported in bottles, the bottles shall pay a separate duty.' The same section provided that ale, porter, and beer in bottles should pay 20 cents per gallon, and otherwise than in bottles, 15 cents per gallon. The same act imposed a duty on bottles. By section 6 of the act of March 2, 1861, (12 St. at Large, 180,) it was provided that 'brandies or other spirituous liquors may be imported in bottles, when the package shall contain not less than one dozen, and all bottles shall pay a separate duty, according to the rate established by this act, whether containing wines, brandies, or other spirituous liquors.' The same section imposed a duty on ale, porter, and beer in bottles, of 25 cents per gallon, and otherwise than in bottles, 15 cents per gallon. The seventeenth section of the same act imposed a duty of 30 per cent. ad valorem on 'all glass bottles or jars filled with sweetmeats, preserves, or other articles.' Here was a duty on the bottles containing liquors, wines, or ales, as well as on the contents. By section 2 of the act of June 30, 1864, (13 St. at Large, 203,) it was provided that the separate duty on bottles 'containing wines, brandies, or other spirituous liquors subject to duty' should be two cents each; and that the duty on ale, porter, and beer in bottles should be 35 cents per gallon, and otherwise than in bottles, 20 cents per gallon. By section 9 of the same act, a duty of 40 per cent. ad valorem was imposed on 'all manufactures of glass * * * not otherwise provided for, and all glass bottles or jars filled with sweetmeats, or preserves, not otherwise provided for.' Here was a duty on the bottles containing liquors and ales, in addition to the duties on their contents, although the duty on bottles containing ale was expressed as an ad valorem duty on manufactures of glass, not otherwise provided for, and the duty on bottles containing liquors was expressed as a duty of two cents each. By section 21 of the act of July 14, 1870, (16 St. at Large, 262,) the same rate of duty per gallon was imposed on wines imported in bottles as on wines imported in casks, and a duty of three cents in addition was imposed on each bottle; and the same section further provided that 'wines, brandy, and other spirituous liquors imported in bottles shall be packed in packages containing not less than one dozen bottles in each package, and all such bottles shall pay an additional duty of three cents for each bottle.' Under this act it was held by this court, in De Bary v. Arthur, 93 U. S. 420, that each bottle containing champagne wine was subject to a duty of three cents in addition to the duty on the champagne wine. We now come to the Revised Statutes, under which the duties in the present case were collected. Schedule D of section 2504 imposes the following duties: 'Ale, porter, and beer in bottles, 35 cents per gallon; otherwise than in bottles, 20 cents per gallon.' This is taken from section 2 of the act of June 30, 1864. The same schedule contains the foregoing provisions from the act of July 21, 1870, as to the duty per gallon on wines imported in bottles, and as to the additional duty of three cents on each bottle, and as to the additional duty of three cents for each bottle on bottles containing wines, brandy, and other spirituous liquors. Schedule B of the same section imposes the following duties: 'Glass bottles or jars filled with articles not otherwise provided for, 30 per centum ad valorem.' 'All manufactures of glass * * * not otherwise provided for, and all glass bottles or jars filled with sweetmeats or preserves, not otherwise provided for, 40 per centum ad valorem.' The act of 1861 had imposed a duty of 30 per cent. on 'glass bottles or jars filled with sweetmeats, preserves, or other articles.' The act of 1864 had imposed a duty of 40 per cent. on 'glass bottles or jars filled with sweetmeats or preserves,' thus leaving a 30 per cent. duty on glass bottles filled with articles other than sweetmeats or preserves. So the act of 1864 had imposed a duty of 40 per cent. on manufactures of glass not otherwise provided for. Thus these provisions went into the Revised Statutes. In the sentence 'glass bottles or jars filled with articles not otherwise provided for,' there is no comma between 'jars' and 'filled,' and there is no comma between 'articles' and 'not.' Yet the sentence must be read as if there were a comma in each place. The act of 1861 imposed a duty of 30 per cent. on glass bottles filled with sweetmeats, preserves, or other articles. This was not a duty on the contained articles and on the bottles also. It was not a duty of 30 per cent. on the contents of every glass bottle. It was a duty merely on the bottles. The articles imported in the bottles were subject to such duty, if any, as was elsewhere imposed on them. The act of 1864 imposed a duty of 40 per cent. on glass bottles filled with sweetmeats or preserves, thus raising the duty on such bottles by 10 per cent., while the duty on glass bottles filled with other articles than sweetmeats or preserves was left to stand at 30 per cent.; and in that shape these provisions went into Schedule B of section 2504 of the Revised Statutes. They are found in a schedule which relates solely to earths and earthenware and glass. The act of 1864 imposed a duty of 40 per cent. on all manufactures of glass not otherwise provided for, and that provision, being in force, went into the same Schedule B. The principle of imposing a duty on the sack, box, or covering of any kind in which a dutiable article is imported, separate from and additional to the duty on such article, is applied by section 2907 of the Revised Statutes, which declares that the value of the sack, box, or covering of any kind in which imported merchandise is contained shall be added in determining the dutiable value of such merchandise. This provision is enacted from section 9 of the act of July 28, 1866, (14 St. at Large, 330.) Where the covering is a glass bottle, and the duty on its contents is a specific duty per gallon, and not an ad valorem duty, a duty on the bottle, when added, is to be added as a duty of so much per bottle or as an ad valorem duty, as the statute may enact. But it is no reason for saying that the bottles are not dutiable in addition to their contents, that a higher rate of duty is imposed on the contained article when imported in bottles than when imported otherwise than in bottles. If a reason is to be sought for, it may well be found in the fact that while imposing a duty on the bottle, in analogy to the duty on the sack, box, or covering, the statute desired to encourage the bottling here of the article imported in the bottles, by imposing a higher duty on the importation of it in bottles than on the importation of it otherwise than in bottles. Under this view the statute reads and means that glass bottles which are not otherwise provided for, and are filled with articles, shall pay a duty of 30 per cent. If they were to be regarded as manufactures of glass, not otherwise provided for, they would pay 40 per cent,; or if, under Schedule B of section 2504, they were to be regarded as plain, or mould, or press glass, they would pay 35 per cent. But as they are clearly bottles they are to pay only 30 per cent. In section 2 of the act of February 8, 1875, (18 St. at Large, 307,) it is expressly enacted that no separate or additional duty shall be collected on the bottles in which still wines are imported. The additional duty on bottles in which other articles than still wines are imported is left undisturbed. It is manifest, we think, in view of the course of legislation by congress, that an enactment that the duty on ale, porter, and beer in bottles shall be so much per gallon, cannot be regarded as an enactment that there shall be no additional duty on the bottles, when there is another provision of law which imposes an ad valorem duty on bottles not otherwise provided for, filled with articles. It is contended by the plaintiffs in error that all duty on the bottles is included in the duty of 35 cents per gallon on the ale 'in bottles.' Reliance for this view is had on the decision of Chief Justice TANEY in Karthaus v. Frick, Taney, Dec. 94, in 1840, where it was held that, under a statute imposing a duty on salt of 10 cents per 56 pounds, an ad valorem duty could not in addition be imposed on the sacks in which the salt was imported, as manufactures of hemp. That decision is placed expressly on the ground that there was no instance where a separate duty had been laid on the vessel or receptacle containing an article, when a specific duty was laid upon the article. That case arose under the act of July 14, 1832, (4 St. at Large, 583,) and stress was laid in the decision on the analogous fact that while there was in the act a duty on bottles, there was no duty on bottles containing any article, but only a duty on the article in the bottles. This has all now been changed, and there is a duty on coverings, and a duty on bottles containing articles, as well as duty on the same articles imported in bottles. The judgment of the circuit court is affirmed.

108.US.422

The order sustaining Post's demurrer to the original complaint gave the plaintiff leave to amend, and did not preclude the plaintiff from renewing, nor the court from entertaining, the same question of law upon a fuller development of the facts at the trial on the amended complaint. Calder v. HUaynes, 7 Allen, 387. Judgment a~fflrmd.

A former appeal in this cause was disposed of by this court by a decision reported in Blake v. Hawkins, 98 U. S. 315, to which reference is made for a full statement of the case as then presented. The final decree of the circuit court, there reviewed, was reversed, and the cause was remanded with directions to take further proceedings and enter a decree in accordance with the opinion of the court as then declared. The subsequent proceedings and decree, upon the mandate of this court, are now brought here for review, on the ground that they do not, in several particulars, conform to that mandate. A brief statement of the case will suffice to explain and adjust the remaining controversy. The complainants below were the appellants from the first decree, and are now appellees. They are, of the next of kin of Frances Devereux, entitled to a share of the residue of her personal estate undisposed of by her will. The object of the bill was to obtain an account of that estate from Thomas P. Devereux, as executor de son tort, including a fund, being part of a sum of $50,000 originally charged upon real estate conveyed to Thomas P. Devereux by Frances Devereux, in case she should appoint the same by will or otherwise, and which, it is claimed by the complainants, she had appointed by her will to her executors. The estate of Thomas P. Devereux passed, by his bankruptcy, to assignees and trustees, including the lands on which the fund in question, alleged to have been the subject of the appointment, had been charged. These assignees and trustees were defendants below, and are now appellants. The charge upon the lands conveyed to Thomas P. Devereux included an annuity, during the life of Frances Devereux, payable to herself, of $3,000, being 6 per cent. on the principal sum; and as to the principal sum, the language of the deed was 'that the said Thomas P. Devereux, his heirs or assigns, shall invest for, or pay to, the said Frances, at such times, in such proportions, and in such manner and form as she shall direct and require, to and for her own sole and separate use, and subject to her own disposal by will, deed, or writings in nature thereof, or otherwise, to all intents and purposes (notwithstanding her coverture) as if she were a feme sole and unmarried, the sum of $50,000; but if the said sum of money, or any part thereof, shall remain unpaid, or shall not be invested during her life, and if the said Frances shall not by deed or will or writing in nature thereof, or by some other act, give, grant, dispose, or direct any payment, investment, or application of the same, then the said sum of money, or so much thereof as shall remain not paid, given, granted, disposed, or directed to be invested, paid, or applied, shall be considered as lapsing and the charge thereof as extinguished for the benefit of the said Thomas.' In her will, among other bequests, was one of $7,500 to Thomas P. Devereux, in trust, to apply the income on the same annually to the payment of certain annuities and charities therein specified. There was no residuary clause. Thomas P. Devereux, though named as executor in his mother's will, did not qualify as such; but, after her death, paid off the legacies mentioned and took possession of a large part of her personal estate, so as to become chargeable therefor as executor de son tort. The estate of Frances Devereux is represented by an administrator de bonis non with the will annexed. The decree of the circuit court in 1874, which was the subject of the former appeal, declared, among other things: (1) That Frances Devereux did not by her last will appoint the fund of $50,000, charged upon the land, 'to be part of her general personal estate in the hands of her executors; nor appoint the said funds at all, except so far as it is necessary to resort to the same to pay off the pecuniary legacies bequeathed by her in her said will, after exhausting for that purpose what remains of her personal assets, after payment of her debts and general expenses and the costs of administering her estate.' (2) That the complainants were not entitled to any account of the fund of $50,000, except for the purpose of determining the amount in arrears of the annuity of $3,000 during the life-time of Thomas Devereux, unexpended, of which unexpended balance, and of the remainder of her personal estate which came to the hands of Thomas P. Devereux, they are entitled to an account. (3) That in taking that account, the assignees in bankruptcy are entitled to be credited with the amounts which Thomas P. Devereux expended in purchasing the pecuniary legacies bequeathed by Frances Devereux. A statement of that account was agreed upon, which showed that, at the date of his bankruptcy, May 31, 1868, Thomas P. Devereux was chargeable with $41,633 of the general personal assets of his mother's estate, after payment of debts, funeral expenses, and costs of administration, including interest to that date; and that he was entitled to credit for $39,466.58, which included interest to the same date, for the amount expended by him in payment or purchase of the pecuniary legacies under the will, leaving a balance due from him of $2,166.42, of which the complainants were entitled to one-third, or $722.14, for which, accordingly, a decree was entered in their favor. In reversing this decree, this court said, (98 U. S. 328:) 'Whether, if the fund which remained in the hands of Thomas P. Devereux at the death of the testatrix had exceeded the sum required to pay the legacies given by her will—that is to say, the sum of $28,500—the will would have been a complete execution of the power, covering the whole fund, or only a partial appointment of so much as was needed to pay those legacies, it is unnecessary for us now to decide. In the view which we take of the other questions involved in the case, that fund had been reduced so far that there was not more than enough remaining subject to the power to pay the sums bequeathed by the will. The execution was therefore complete, and it appointed the whole fund to the executors of this will, who took it under the appointment as part of the personal estate of the appointor. * * *' There was, therefore, error in the decree of the circuit court, so far as it adjudged that the testatrix, Frances Devereux, did not appoint to her executors the fund over which she had the power of appointment, 'except so far as it is necessary to resort to the same to pay off the pecuniary legacies bequeathed by her in her said will, after exhausting for that purpose what remains of her general assets after payment of her debts and funeral expenses and the costs of administering her estate.' After noticing and disposing of other assignments of error, not material now to be repeated, the judgment of the court concludes as follows: 'Our conclusion, therefore, is, after reviewing the whole case, that there has been no error committed, except the single one which we first noticed. For that, however, the decree of the circuit court must be reversed, and the case sent back with instructions to direct a new accounting, and to enter a decree in conformity with this opinion.' The mandate of this court was entered of record in the circuit court at the June term, 1879; and thereupon Louisa N. Taylor filed her petition praying to be made a party, for the purpose of asserting her right to receive the value of two annuities to which she claimed to be entitled,—one of $50 per annum out of the fund of $7,500 bequeathed to Thomas P. Devereux in trust for herself and others; and one of $150 per annum, which, by the will of Frances Devereux, was directed to be paid out of the funds arising from the sale of certain slaves and a house and lot in Chapel Hill, it being alleged in her petition that Thomas P. Devereux had sold the house and lot, received the proceeds, and converted the slaves to his own use. Service of this petition was accepted, and it was agreed that it might be heard at the same term, if practicable. The assignees in bankruptcy filed their answer to it, pleading the statute of limitations, alleging that the fund of $7,500 had been raised, and that the lands of Thomas P. Devereux were discharged from its payment, denying that the $150 annuity was a charge on those lands, but upon the house and lot in Chapel Hill, which sold for only $45, and the slaves which it is alleged were not sold by Thomas P. Devereux, but lost by the result of the war, etc. It was thereupon agreed by the parties to waive the taking of the account ordered by the mandate of this court, and that 'the balance charged on the land of Thomas P. Devereux, and which Mrs. Frances Devereux had not disposed of during her life, and which by her will she appointed to her executors, was on the third (3d) of June, 1849, the date of her death, the sum of ($21,527.67) twenty-one thousand five hundred and twenty-seven dollars and sixty-seven cents.' The facts in regard to the legacy of $7,500 to Thomas P. Devereux in trust, and the interest therein of Louisa N. Taylor, were also agreed upon. It was further agreed that a certain account, D, theretofore taken, of the general personal assets of Frances Devereux, filed at June term, 1874, was correct, except that the assignees in bankruptcy insisted on an exception to the extent that Thomas P. Devereux is chargeable only with one-half the value of the slaves, being $9,995.50, with interest thereon to the amount of $9,823.57, instead of with the full amount charged; while the complainants insisted that the correctness of that account had been finally agreed to and settled at the June term, 1874, but that otherwise the account was in all respects correct. At the November term, 1879, the final decree was made, from which the present appeal is taken. The first seven of the declarations in that decree specifically follow the mandate of this court, and the agreement of the parties as to the state of the accounts, overruling the exception of the assignees in bankruptcy to the account, D, charging Thomas P. Devereux with the value of all the slaves which came to his hands after the death of Mrs. Devereux; and in this, we think, there is no error. '(8) It is further declared that the said Thomas P. Devereux never raised and appropriated the $7,500 appointed to him in trust by the will of the said Frances out on his lands, conveyed to him by the aforesaid deed of July 3, 1839, and that all the annuitants provided for by said appointment of $7,500 are dead or have abandoned their claims, except Louisa N. Taylor, who is still living; and that none of said annuities have been paid since the first day of January, 1863, except the annuity to the said Louisa N. Taylor, which was paid by the said Thomas P. Devereux up to the first day of January, 1867; and the court doth declare that there is a resulting trust for one-third of said sum of $7,500, and interest thereon from the first day of January, 1863, to the plaintiffs, subject, however, to the said Louisa N. Taylor's claim for the value of her annuity of $50 per annum, one-third of which value falls upon the plaintiff's share of said resulting trust; which said claims of the said Louisa N. and the said plaintiffs are first liens upon the lands of the said Thomas P. Devereux, or the proceeds thereof, in the hands of the defendants, in the relative order in which said claims are last herein stated, and are to be first paid in full by the defendants with and out of the proceeds of said lands. '(9) It is further declared that the said Thomas P. Devereux, before November, 1852, purchased up all the other pecuniary legacies bequeathed by the will of the said Frances, and after said purchase, and before the day and date last aforesaid, converted to his own use all the general personal assets of the said Frances specified in section 7 of this decree as amounting, on the thirty-first day of May, 1868, to forty-one thousand six hundred and thirty-three dollars, ($41,633,) claiming the same to belong to him to satisfy the said pecuniary legacies and the aforementioned sum of $7,500; and the court doth declare that the annuity of $150 per annum bequeathed by the will of the said Frances to the said Louisa N. Taylor was and is a first lien on said sum of $41,633 of general assets, and ought to have been first paid thereout, and that the plaintiffs ought to have been paid one-third of said sum of general assets, subject to the burden of one-third of the annuity of $150 per annum to the said Louisa N. Taylor; and that the said pecuniary legacies purcbased by the said Thomas P. Devereux as aforesaid, and the aforesaid sum of $7,500, ought to have been paid out of the fund charged and appointed by the last will and testament of the said Frances Devereux on and out of the lands of the said Thomas P. Devereux, and the money to satisfy the same ought to have been raised on and out of said lands, and that said lands were exonerated from said burden by the use by the said Thomas P. Devereux of the general personal assets aforesaid, whereby the plaintiffs have become entitled to have their aforesaid one-third of said general personal assets, burdened as aforesaid, paid out of the proceeds of said lands in the hands of the defendants, and the said Louisa N. Taylor has become entitled to have the value of her aforesaid annuity of $150 per annum paid to her out of the said proceeds of the said lands, and in preference to the said claim of the plaintiffs; and it is declared by the court here that the last aforesaid claim of the said Louisa N. Taylor is a third lien upon the said proceeds of lands in the hands of the defendants, and the last aforesaid claim of the plaintiffs is a fourth lien on the same, and that both of said claims are to be paid by the defendants out of said proceeds in the relative order in which the same are next hereinbefore stated in full, if the said proceeds shall be sufficient to pay both of the same in full, and if not sufficient then the claim of the said Louisa N. is to be paid in full, and the claim of the plaintiffs shall be paid as far as said proceeds shall extend to satisfy the same. '(10) All the parties, plaintiff and defendant, having, at June term, A. D. 1879, of this court, filed an agreement in writing waiving any further account, and ascertaining the balance charged on the lands of Thomas P. Devereux, for the benefit of Frances Devereux at the date of her decease, in the words and figures following, to-wit: "In this cause the mandate from the supreme court of the United States is filed, and to avoid the expense and delay incident to taking the account ordered and directed herein by the decision and decree of said court, and because from the accounts already heretofore taken in this cause the parties are able to ascertain by agreement all the results necessary for the final determination of this cause, without the new accounting directed by said decree of supreme court, by consent of all the parties, plaintiff and defendant, herein, all further account herein is waived, and it is agreed that the balance charged on the land of Thomas P. Devereux, and which Mrs. F. Devereux had not disposed of during her life, and which, by her will, she appointed to her executors, was, on the third day of June, 1849, the date of her death, the sum of twenty-one thousand five hundred and twenty-seven dollars and sixty-seven cents, ($21,527.67.)' '(11) And the said Louisa N. Taylor having, at June term, 1879, of this court, filed a petition to be made a party to this cause and to assert her rights in the premises, and having at said term, by the consent of all the parties, plaintiff and defendant, herein been made a party hereto, and it appearing to the court that said Louisa N. Taylor, on the twenty-sixth of March, 1869, before the register in bankruptcy proved and filed her claim on account of the legacy hereinbefore named against the estate of said bankrupt, Thomas P. Devereux, as a debt secured by lien on the lands of the said Thomas P. Devereux, to the amount of $2,926.12, with interest, and the plaintiffs having here in open court assented to the payment of said claim in the manner specified and directed in this decree, the court doth declare that there is now due to the said Louisa N. Taylor upon the $50 annuity, the sum of $1,196.45, with interest on $726.53 from November 24, 1879, and upon the $150 annuity, the sum of $3,413.40, with interest on $2,179.59 from November 24, 1879, charged as hereinbefore declared. 'And thereupon, it being obvious to the court that a new reference and further account in the premises is entirely useless and unnecessary, it is finally ordered, adjudged, and decreed that the said Louisa N. Taylor recover of the defendants, William J. Hawkins and Walter Clark, assignees in bankruptcy of the estate and effects of Thomas P. Devereux, deceased, a bankrupt, and of the said Walter Clark and the defendant John Devereux, substituted trustees for Thomas P. Devereux, deceased, under the deed for the Pollock land of July 3, 1839, the sum of ($1,196.45) eleven hundred and ninety-six dollars and forty-five cents, with interest on $726.53 thereof, from twenty-fourth November, 1879, until paid, to be paid and satisfied out of the proceeds of the sales of the said Pollock lands, in their hands, respectively, first, and in preference to all other claims against said proceeds; and that the plaintiffs, Grinfill Blake and Elizabeth J., his wife, and John Townsend and Georgiana P., his wife, do recover of the said defendants, Hawkins, Clark, and Devereux, assignees and trustees, as aforesaid, the sum of ($4,569.73) forty-five hundred and sixty-nine dollars and seventy-three cents, with interest on $2,468.34 thereof from the twenty-fourth November, 1879, until paid, to be paid out of said proceeds of said sales of said Pollock lands in their hands, respectively, and next in order of preference. 'And that the said Louisa N. Taylor do recover of the said defendants, Hawkins, Clark, and Devereux, assignees and trustees as aforesaid, the sum of ($3,413.40) three thousand four hundred and thirteen dollars and forty cents, with interest on ($2,179.59) twenty-one hundred and seventy-nine dollars and fifty-nine cents thereof from the twenty-fourth November, 1879, until paid, to be paid and satisfied out of said proceeds of said sales of said Pollock lands in their hands, respectively, and next in order of preference. 'And that the plaintiffs, Grinfill Blake and Elizabeth J., his wife, and John Townsend and Georgiana P., his wife, do recover of the said defendants, Hawkins, Clark, and Devereux, trustees and assignees as aforesaid, ($21,200.46,) twenty-one thousand two hundred dollars and forty-six cents, with interest on $13,877.66 thereof from the twenty-fourth day of November, 1879, until paid, to be paid and satisfied out of the said proceeds of the said sales of the said Pollock lands in their hands, respectively, and in the event that said proceeds shall prove sufficient to pay and satisfy said last-mentioned sum in full, and if said proceeds shall not prove sufficient, then as far as said proceeds shall extend to satisfy the same. 'That the costs in this cause incurred, to be taxed by the clerk, be paid by the said defendants, assignees, and trustees as aforesaid, with and out of said proceeds of said sales of said Pollock lands in full, and without reference to the satisfaction of the four foregoing sums adjudged to be paid out of such proceeds.' It is now objected to this decree that it is not warranted by the mandate of this court, in execution of which only it could be properly made; and that if the matters decreed were open under the mandate, they were adjudged erroneously. It is said, in the first place, that it was error to permit Louisa N. Taylor to become a party and set up rights not embraced in the former decree. The obvious answer to this objection is that it was done by consent of all parties, as appears by the record. And there is no ground on which the decree in her favor can be impugned. Her annuity of $50 per annum was expressly payable out of the legacy to Thomas P. Devereux in trust, in respect to which his assignees cannot be heard to say that his land has been relieved of the charge by which the fund was to be raised, when, in point of fact, the fund never has been raised. As to the annuity of $150, although payable out of a fund expressly designated, it was a demonstrative legacy, payable, in default of that fund, out of general assets, and entitled, therefore, to the benefit of the fund of $50,000, converted by the appointment into general personal estate, and as part of that chargeable on the lands as hereafter shown. 2 Wms. Ex'rs, pt. 3, book 3, c. 2 § 3, p. [1160,] (6th Amer.Ed.) 1252. It is next objected that the circuit court below erred in charging the amount found due to the appellees, as next of kin, entitled to share the undisposed residue of the estate of Frances Devereux, from the estate of Thomas P. Devereux, upon his real estate conveyed to him by his mother. It is claimed that this part of the decree is not justified by the mandate, and is erroneous on principle. But this view, in our opinion, cannot be sustained. The very point of our former decision was that the appellees were entitled to an account of the fund of $50,000, or so much of it as remained, as part of the personal estate of Mrs. Frances Devereux, by virtue of her will, construed as an appointment. The language of the opinion was, (98 U.S. 328:) 'We conclude, therefore, that Mrs. Devereux's will was an execution of the power and an appointment of the fund to her executors. It converted the fund into her own estate, at least to the extent of $28,500, if there was so much of it remaining.' It is conceded that the proper amount of this fund, according to the agreement of the parties, has been brought into account, and that the balance decreed in favor of the appellees is the true amount due to them from the estate of Thomas P. Devereux. This is so, because the personal estate of Mrs. Frances Devereux has been increased, in the account, by the addition of the balance of this fund, according to the mandate of this court. But that fund is still uncollected and is a lien on lands of Thomas P. Devereux in the hands of his assignees and trustees. Why should not the security go with the debt? The debt is the principal and the security an incident, which necessarily attends it. It certainly was not the intention of this court, in its former order, to separate them. And when it reversed the decree of the circuit court in order to award to the appellees the benefit of the fund appointed by the will of Mrs. Devereux, to become part of her personal estate, it meant also to give them the benefit of any security for its collection and payment that appointment furnished. And that such security existed, by way of lien and charge upon the land, in virtue of the appointment, and inures to the benefit of the appellees, as entitled to share in the general personal estate of the testatrix, is necessarily involved in the former judgment of this court. For that judgment did not proceed, as seems to be claimed, on the ground that the appointment of that fund by the will was merely to the legatees, or to the use of the legatees, under the will, so that when their legacies were satisfied, no matter by what means, the land was discharged of its lien. On the contrary, that judgment proceeded on the ground that the will was an appointment of what remained of the fund of $50,000 as a charge upon the land, to the executor of the testatrix, so as to convert that fund into part of the general personal estate of the testatrix, thereby subjecting it, as part of that estate, to the claims of all persons entitled to share in its distribution; it being the intention of the testatrix, as expressly deduced by this court from the provisions of the will, to provide a fund in the hands of her executors, in addition to the personal estate in possession, adequate to redeem the legacies given by the will, so as to exonerate that estate from their payment. That fund was not a trust, merely in aid of the general assets, to enable the latter to meet the payment of the legacies. That was the error of the circuit court in its first decree, for which it was reversed. It was, on the other hand, as declared by this court, 'an appointment of the whole fund to the executors of the will, who took it under the appointment as part of the personal estate.' And that means, just what the decree now under review declares, that it is appointed to be raised by a sale of the land on which it is charged, to be paid into the estate of the testatrix, for the purpose of being distributed to the appellees, as being the parties entitled. Not only was this fund charged upon the real estate of Thomas P. Devereux appointed to his executors, so as to become part of the general personal estate of Mrs. Frances Devereux, so that in law the whole, including the undisposed-of residue, became liable to distribution as one trust fund for creditors, legatees, and distributees, in the order of legal priority, but that order of priority was changed by the will, as declared by this court, so as to make the fund charged on the land and appointed by the will the primary fund for the payment of the legacies, so as to authorize those entitled to the general personal estate, as in this case, the next of kin entitled to the undisposed-of residue, to require that, for the purpose of paying their legacies, the specific fund charged on the land and appointed by the will should be first exhausted before resorting to the general assets of the testatrix. This court expressly so declared in its judgment on the former appeal. It said, (98 U. S. 327:) 'Turning now to the will we have before us, two things are evident. The first is that the testatrix did not intend that the pecuniary legacies given for charitable purposes and to pay annuities should be satisfied out of her own personal property.' After specifying the disposition made of her personal estate in possession, the opinion proceeds: 'Thus it appears that while she gave pecuniary legacies amounting in the aggregate to more than $28,500, she carefully withdraw from any positive application to their payment the personal estate she owned in her own right.' Notwithstanding this, Thomas P. Devereux, acting, though wrongfully, as executor of this will, and chargeable as such, appropriates the general personal estate to his own use, to reimburse himself the amount which he had expended in paying or purchasing the legacies; and thus charges them upon the general assets, in violation of the intention of the will and the rights of the parties who by law were entitled to share in that estate. Why are not the next of kin now entitled to stand in the place of those legatees, in respect to the fund out of which they should have been paid? Upon the familiar principle of marshaling assets by means of subrogation, when a party, having a right to resort to two funds, to the detriment of another, entitled to be paid out of but one, has been satisfied out of the latter, the fund thus exonerated will in equity be subjected to the payment of the postponed claim. This is such a case. For it is immaterial that Thomas P. Devereux did not use the specific property received by him out of the estate of Frances Devereux for the purpose of paying or purchasing the legacies entitled to payment out of the fund charged on his land, because he has received credit, with the assent of the parties and by the decree of the court, in his account of the general assets of that estate, for the amount paind by him on account of the legacies. How can he say, after that, that his real estate has been discharged of the lien by his payment of the legacies? The deficiency in the general personal estate thus created by him for the purpose of exonerating his land, is, in equity, something more than a personal claim against him. It is entitled to be supplied out of the securities that attended the claims which it was created to satisfy, and these securities are in equity considered as subsisting for that purpose. As against Thomas P. Devereux himself, if he were in being and in his own right defending against this claim of the appellees, the case would be too clear for argument. What greater rights have his assignees in bankruptcy, representing his general creditors? They have come into possession of this real estate, but only with the title by which he held it, subject to the specific equity now asserted against it; and in their hands, as trustees, it must be held and applied to subserve the purposes to which in equity it is devoted. Those purposes, in our opinion, are correctly set forth in the decree of the circuit court; and it is accordingly affirmed.

109.US.3

1. The 1st and 2d sections of the Civil Rights Act passed March 1st, 1875, are unconstitutional enactments as applied to the several States, not being authorized either by the XIllth or XTVth Amendments of the Constitution. 2. The XIVth Amendment is prohibitory upon the States only, and the legislation authorized to be adopted by Congress for enforcing it is not direct legislation on the matters respecting which the States are prohibited from maling or enforcing certain laws, or doing certain acts, but is corrective legislation, such as may be necessary or proper for counteracting and .redressing tho effect of such laws or acts. 8. The XIIIth Amendment relates only to slavery and involuntary servitude (which it abolishes) ; and although, by its reflex action, it establishes universal freedom in tlie United States, and Congress may probably pass laws directly enforcing its provisions; yet such legislative power extends only to the subject of slavery and its incidents ; and the denial of equal accommodations in inns, public conveyances and places of public amuse. ment (which is forbidden by the sections in question), imposes no badge of slavery or involuntary servitude upon the party, but at most, infringes rights which are protected from State aggression by the XIVth Amendment. 4. Whether the accommodations and privileges sought to be protected by the 1st and 2d sections of the Civil Rights Act, are, or are not, rights constitutionally demandable ; and if they are, in what form they are to be protected, is not now decided. 5. Nor is it decided whether the law as it stands is operative in the Territories and District of Columbia : the decision only relating to its validity as applied to the States. 6. Nor is it decided whether Congress, under the commercial power, may or may not pass a law securing to all persons equal accommodations on lines of public conveyance between two or more States.

It is obvious that the primary and important question in all the cases is the constitutionality of the law; for if the law is unconstitutional none of the prosecutions can stand. The sections of the law referred to provide as follows: 'Section 1. That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accomodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of publie amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude. 'Sec. 2. That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude, the full enjoyment of any of the accomodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall, for every such offense, forfeit and pay the sum of $500 to the person aggrieved thereby, to be recovered in an action of debt, with full costs; and shall, also, for every such offense, be deemed guity of a misdemeanor, and upon conviction thereof shall be fined not less than $500 nor more than $1,000, or shall be imprisoned not less than 30 days nor more than one year: Provided, that all persons may elect to sue for the penalty aforesaid, or to proceed under their rights at common law and by state statutes; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred. But this provision shall not apply to criminal proceedings, either under this act or the criminal law of any state: And provided, further, that a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respectively.' Are these sections constitutional? The first section, which is the principal one, cannot be fairly understood without attending to the last clause, which qualifies the preceding part. The essence of the law is, not to declare broadly that all persons shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, PUBLIC CONVEYANCES, AND THEATERS; BUT That such enjoyment shall not be subject to any conditions applicable only to citizens of a particular race or color, or who had been in a previous condition of servitude. In other words, it is the purpose of the law to declare that, in the enjoyment of the accommodations and privileges of inns, public conveyances, theaters, and other places of public amusement, no distinction shall be made between citizens of different race or color, or between those who have, and those who have not, been slaves. Its effect is to declare that in all inns, public conveyances, and places of amusement, colored citizens, whether formerly slaves or not, and citizens of other races, shall have the same accommodations and privileges in all inns, public conveyances, and places of amusement, as are enjoyed by white citizens; and vice versa. The second section makes it a penal offense in any person to deny to any citizen of any race or color, regardless of previous servitude, any of the accommodations or privileges mentioned in the first section. Has congress constitutional power to make such a law? Of course, no one will contend that the power to pass it was contained in the constitution before the adoption of the last three amendments. The power is sought, first, in the fourteenth amendment, and the views and arguments of distinguished senators, advanced while the law was under consideration, claiming authority to pass it by virtue of that amendment, are the principal arguments adduced in favor of the power. We have carefully considered those arguments, as was due to the eminent ability of those who put them forward, and have felt, in all its force, the weight of authority which always invests a law that congress deems itself competent to pass. But the responsibility of an independent judgment is now thrown upon this court; and we are bound to exercise it according to the best lights we have. The first section of the fourteenth amendment,—which is the one relied on,—after declaring who shall be citizens of the United States, and of the several states, is prohibitory in its character, and prohibitory upon the states. It declares that 'no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' It is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all state legislation, and state action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the laws. It not only does this, but, in order that the national will, thus declared, may not be a mere brutum fulmen, the last section of the amendment invests congress with power to enforce it by appropriate legislation. To enforce what? To enforce the prohibition. To adopt appropriate legislation for correcting the effects of such prohibited state law and state acts, and thus to render them effectually null, void, and innocuous. This is the legislative power conferred upon congress, and this is the whole of it. It does not invest congress with power to legislate upon subjects which are within the domain of state legislation; but to provide modes of relief against state legislation, or state action, of the kind referred to. It does not authorize congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the fourteenth amendment; but they are secured by way of prohibition against state laws and state proceedings affecting those rights and privileges, and by power given to congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect. A quite full discussion of this aspect of the amendment may be found in U. S. v. Cruikshank, 92 U. S. 542; Virginia v. Rives, 100 U. S. 313, and Ex parte Virginia, Id. 339. An apt illustration of this distinction may be found in some of the provisions of the original constitution. Take the subject of contracts, for example. The constitution prohibited the states from passing any law impairing the obligation of contracts. This did not give to congress power to provide laws for the general enforcement of contracts; nor power to invest the courts of the United States with jurisdiction over contracts, so as to enable parties to sue upon them in those courts. It did, however, give the power to provide remedies by which the impairment of contracts by state legislation might be counteracted and corrected; and this power was exercised. The remedy which congress actually provided was that contained in the twenty-fifth section of the judiciary act of 1789, giving to the supreme court of the United States jurisdiction by writ of error to review the final decisions of state courts whenever they should sustain the validity of a state statute or authority, alleged to be repugnant to the constitution or laws of the United States. By this means, if a state law was passed impairing the obligation of a contract, and the state tribunals sustained the validity of the law, the mischief could be corrected in this court. The legislation of congress, and the proceedings provided for under it, were corrective in their character. No attempt was made to draw into the United States courts the litigation of contracts generally, and no such attempt would have been sustained. We do not say that the remedy provided was the only one that might have been provided in that case. Probably congress had power to pass a law giving to the courts of the United States direct jurisdiction over contracts alleged to be impaired by a state law; and, under the broad provisions of the act of March 3, 1875, giving to the circuit courts jurisdiction of all cases arising under the constitution and laws of the United States, it is possible that such jurisdiction now exists. But under that or any other law, it must appear, as well by allegation as proof at the trial, that the constitution had been violated by the action of the state legislature. Some obnoxious state law passed, or that might be passed, is necessary to be assumed in order to lay the foundation of any federal remedy in the case, and for the very sufficient reason that the constitutional prohibition is against state laws impairing the obligation of contracts. And so in the present case, until some state law has been passed, or some state action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the fourteenth amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity, for the prohibitions of the amendment are against state laws and acts done under state authority. Of course, legislation may and should be provided in advance to meet the exigency when it arises, but it should be adapted to the mischief and wrong which the amendment was intended to provide against; and that is, state laws or state action of some kind adverse to the rights of the citizen secured by the amendment. Such legislation cannot properly cover the whole domain of rights appertaining to life, liberty, and property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make congress take the place of the state legislatures and to supersede them. It is absurd to affirm that, because the rights of life, liberty, and property (which include all civil rights that men have) are by the amendment sought to be protected against invasion on the part of the state without due process of law, congress may, therefore, provide due process of law for their vindication in every case; and that, because the denial by a state to any persons of the equal protection of the laws is prohibited by the amendment, therefore congress may establish laws for their equal protection. In fine, the legislation which congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation; that is, such as may be necessary and proper for counteracting such laws as the states may adopt or enforce, and which by the amendment they are prohibited from making or enforcing, or such acts and proceedings as the states may commit or take, and which by the amendment they are prohibited from committing or taking. It is not necessary for us to state, if we could, what legislation would be proper for congress to adopt. It is sufficient for us to examine whether the law in question is of that character. An inspection of the law shows that it makes no reference whatever to any supposed or apprehended violation of the fourteenth amendment on the part of the states. It is not predicated on any such view. It proceeds ex directo to declare that certain acts committed by individuals shall be deemed offenses, and shall be prosecuted and punished by proceedings in the courts of the United States. It does not profess to be corrective of any constitutional wrong committed by the states; it does not make its operation to depend upon any such wrong committed. It applies equally to cases arising in states which have the justest laws respecting the personal rights of citizens, ans whose authorities are ever ready to enforce such laws as to those which arise in states that may have violated the prohibition of the amendment. In other words, it steps into the domain of local jurisprudence, and lays down rules for the conduct of individuals is society towards each other, and imposes sanctions for the enforcement of those rules, without referring in any manner to any supposed action of the state or its authorities. If this legislation is appropriate for enforcing the prohibitions of the amendment, it is difficult to see where it is to stop. Why may not congress, with equal show of authority, enact a code of laws for the enforcement and vindication of all rights of life, liberty, and property? If it is supposable that the states may deprive persons of life, liberty, and property without due process of law, (and the amendment itself does suppose this,) why should not congress proceed at once to prescribe due process of law for the protection of every one of these fundamental rights, in every possible case, as well as to prescribe equal privileges in inns, public conveyances, and theaters. The truth is that the implication of a power to legislate in this manner is based upon the assumption that if the states are forbidden to legislate or act in a particular way on a particular subject, and power is conferred upon congress to enforce the prohibition, this gives congress power to legislate generally upon that subject, and not merely power to provide modes of redress against such state legislation or action. The assumption is certainly unsound. It is repugnant to the tenth amendment of the constitution, which declares that powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people. We have not overlooked the fact that the fourth section of the act now under consideration has been held by this court to be constitutional. That section declares 'that no citizen, possessing all other qualifications which are or may be prescribed by law, shall be disqualified for service as grand or petit juror in any court of the United States, or of any state, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid, shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars.' In Ex parte Virginia, 100 U. S. 339, it was held that an indictment against a state officer under this section for excluding persons of color from the jury list is sustainable. But a moment's attention to its terms will show that the section is entirely corrective in its character. Disqualifications for service on juries are only created by the law, and the first part of the section is aimed at certain disqualifying laws, namely, those which make mere race or color a disqualification; and the second clause is directed against those who, assuming to use the authority of the state government, carry into effect such a rule of disqualification. In the Virginia case, the state, through its officer, enforced a rule of disqualification which the law was intended to abrogate and counteract. Whether the statute-book of the state actually laid down any such rule of disqualification or not, the state, through its officer, enforced such a rule; and it is against such state action, through its officers and agents, that the last clause of the section is directed. This aspect of the law was deemed sufficient to divest it of any unconstitutional character, and makes it differ widely from the first and second sections of the same act which we are now considering. These sections, in the objectionable features before referred to, are different also from the law ordinarily called the 'Civil Rights Bill,' originally passed April 9, 1866, and re-enacted with some modifications in sections 16, 17, 18, of the enforcement act, passed May 31, 1870. That law, as re-enacted, after declaring that all persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding, proceeds to enact that any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any state or territory to the deprivation of any rights secured or protected by the preceding section, (above quoted,) or to different punishment, pains, or penalties, on account of such person being an alien, or by reason of his color or race, than is prescribed for the punishment of citizens, shall be deemed guilty of a misdememeanor, and subject to fine and imprisonment as specified in the act. This law is clearly corrective in its character, intended to counteract and furnish redress against state laws and proceedings, and customs having the force of law, which sanction the wrongful acts specified. In the Revised Statutes, it is true, a very important clause, to-wit, the words 'any law, statute, ordinance, regulation, or custom to the contrary not-withstanding,' which gave the declaratory section its point and effect, are omitted; but the penal part, by which the declaration is enforced, and which is really the effective part of the law, retains the reference to state laws by making the penalty apply only to those who should subject parties to a deprivation of their rights under color of any statute, ordinance, custom, etc., of any state or territory, thus preserving the corrective character of the legislation. Rev. St. §§ 1977, 1978, 1979, 5510. The civil rights bill here referred to is analogous in its character to what a law would have been under the original constitution, declaring that the validity of contracts should not be impaired, and that if any person bound by a contract should refuse to comply with it under color or pretense that it had been rendered void or invalid by a state law, he should be liable to an action upon it in the courts of the United States, with the addition of a penalty for setting up such an unjust and unconstitutional defense. In this connection it is proper to state that civil rights, such as are guarantied by the constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the state, or not done under state authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the state for redress. An individual cannot deprive a man of his right to vote, to hold property, to buy and to sell, to sue in the courts, or to be a witness or a juror; he may, by force or fraud, interfere with the enjoyment of the right in a particular case; he may commit an assault against the person, or commit murder, or use ruffian violence at the polls, or slander the good name of a fellow-citizen; but unless protected in these wrongful acts by some shield of state law or state authority, he cannot destroy or injure the right; he will only render himself amenable to satisfaction or punishment; and amenable therefor to the laws of the state where the wrongful acts are committed. Hence, in all those cases where the constitution seeks to protect the rights of the citizen against discriminative and unjust laws of the state by prohibiting such laws, it is not individual offenses, but abrogation and denial of rights, which it denounces, and for which it clothes the congress with power to provide a remedy. This abrogation and denial of rights, for which the states alone were or could be responsible, was the great seminal and fundamental wrong which was intended to be remedied. And the remedy to be provided must necessarily be predicated upon that wrong. It must assume that in the cases provided for, the evil or wrong actually committed rests upon some state law or state authority for its excuse and perpetration. Of course, these remarks do not apply to those cases in which congress is clothed with direct and plenary powers of legislation over the whole subject, accompanied with an express or implied denial of such power to the states, as in the regulation of commerce with foreign nations, among the several states, and with the Indian tribes, the coining of money, the establishment of post-offices and post-roads, the declaring of war, etc. In these cases congress has power to pass laws for regulating the subjects specified, in every detail, and the conduct and transactions of individuals respect thereof. But where a subject is not submitted to the general legislative power of congress, but is only submitted thereto for the purpose of rendering effective some prohibition against particular state legislation or state action in reference to that subject, the power given is limited by its object, and any legislation by congress in the matter must necessarily be corrective in its character, adapted to counteract and redress the operation of such prohibited state laws or proceedings of state officers. If the principles of interpretation which we have laid down are correct, as we deem them to be,—and they are in accord with the principles laid down in the cases before referred to, as well as in the recent case of U. S. v. Harris, decided at the last term of this court, [1 SUP. CT. REP. 601,]—it is clear that the law in question cannot be sustained by any grant of legislative power made to congress by the fourteenth amendment. That amendment prohibits the states from denying to any person the equal protection of the laws, and declares that congress shall have power to enforce, by appropriate legislation, the provisions of the amendment. The law in question, without any reference to adverse state legislation on the subject, declares that all persons shall be entitled to equal accommodation and privileges of inns, public conveyances, and places of public amusement, and imposes a penalty upon any individual who shall deny to any citizen such equal accommodations and privileges. This is not corrective legislation; it is primary and direct; it takes immediate and absolute possession of the subject of the right of admission to inns, public conveyances, and places of amusement. It supersedes and displaces state legislation on the same subject, or only allows it permissive force. It ignores such legislation, and assumes that the matter is one that belongs to the domain of national regulation. Whether it would not have been a more effective protection of the rights of citizens to have clothed congress with plenary power over the whole subject, is not now the question. What we have to decide is, whether such plenary power has been conferred upon congress by the fourteenth amendment, and, in our judgment, it has not. We have discussed the question presented by the law on the assumption that a right to enjoy equal accommodations and privileges in all inns, public conveyances, and places of public amusement, is one of the essential rights of the citizen which no state can abridge or interfere with. Whether it is such a right or not is a different question, which, in the view we have taken of the validity of the law on the ground already stated, it is not necessary to examine. We have also discussed the validity of the law in reference to cases arising in the states only; and not in reference to cases arising in the territories or the District of Columbia, which are subject to the plenary legislation of congress in every branch of municipal regulation. Whether the law would be a valid one as applied to the territories and the district is not a question for consideration in the cases before us; they all being cases arising within the limits of states. And whether congress, in the exercise of its power to regulate commerce among the several states, might or might not pass a law regulating rights in public conveyances passing from one state to another, is also a question which is not now before us, as the sections in question are not conceived in any such view. But the power of congress to adopt direct and primary, as distinguished from corrective, legislation on the subject in hand, is sought, in the second place, from the thirteenth amendment, which abolishes slavery. This amendment declares 'that neither slavery, nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction;' and it gives congress power to enforce the amendment by appropriate legislation. This amendment, as well as the fourteenth, is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances. By its own unaided force and effect if abolished slavery, and established universal freedom. Still, legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character; for the amendment is not a mere prohibition of state laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States. It is true that slavery cannot exist without law any more than property in lands and goods can exist without law, and therefore the thirteenth amendment may be regarded as nullifying all state laws which establish or uphold slavery. But it has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States; and it is assumed that the power vested in congress to enforce the article by appropriate legislation, clothes congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United Stated; and upon this assumption it is claimed that this is sufficient authority for declaring by law that all persons shall have equal accommodations and privileges in all inns, public conveyances, and places of public amusement; the argument being that the denial of such equal accommodations and privileges is in itself a subjection to a species of servitude within the meaning of the amendment. Conceding the major proposition to be true, that that congress has a right to enact all necessary and proper laws for the obliteration and prevention of slavery, with all its badges and incidents, is the minor proposition also true, that the denial to any person of admission to the accommodations and privileges of an inn, a public conveyance, or a theater, does subject that person to any form of servitude, or tend to fasten upon him any badge of slavery? If it does not, then power to pass the law is not found in the thirteenth amendment. In a very able and learned presentation of the cognate question as to the extent of the rights, privileges, and immunities of citizens which cannot rightfully be abridged by state laws under the fourteenth amendment, made in a former case, a long list of burdens and disabilities of a servile character, incident to feudal vasslage in France, and which were abolished by the decrees of the national assembly, was presented for the purpose of showing that all inequalities and observances exacted by one man from another, were servitudes or badges of slavery, which a great nation, in its effort to establish universal liberty, made haste to wipe out and destroy. But these were servitudes imposed by the old law, or by long custom which had the force of law, and exacted by one man from another without the latter's consent. Should any such servitudes be imposed by a state law, there can be no doubt that the law would be repugnant to the fourteenth, no less than to the thirteenth, amendment; nor any greater doubt that congress has adequate power to forbid any such servitude from being exacted. But is there any similarity between such servitudes and a denial by the owner of an inn, a public conveyance, or a theater, of its accommodations and privileges to an individual, even through the denial be founded on the race or color of that individual? Where does any slavery or servitude, or badge of either, arise from such an act of denial? Whether it might not be a denial of a right which, if sanctioned by the state law, would be obnoxious to the prohibitions of the fourteenth amendment, is another question. But what has it to do with the question of slavery? It may be that by the black code, (as it was called,) in the times when slavery prevailed, the proprietors of inns and public conveyances were forbidden to receive persons of the African race, because it might assist slaves to escape from the control of their masters. This was merely a means of preventing such escapes, and was no part of the servitude itself. A law of that kind could not have any such object now, however justly it might be deemed an invasion of the party's legal right as a citizen, and amenable to the prohibitions of the fourteenth amendment. The long existence of African slavery in this country gave us very distinct notions of what it was, and what were its necessary incidents. Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master's will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities were the inseparable incidents of the institution. Severer punishments for crimes were imposed on the slave than on free persons guilty of the same offenses. Congress, as we have seen, by the civil rights bill of 1866, passed in view of the thirteenth amendment, before the fourteenth was adopted, undertook to wipe out these burdens and disabilities, the necessary incidents of slavery, constituting its substance and visible from; and to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell, and convey property, as is enjoyed by white citizens. Whether this legislation was fully authorized by the thirteenth amendment alone, without the support which it afterwards received from the fourteenth amendment, after the adoption of which it was re-enacted with some additions, it is not necessary to inquire. It is referred to for the purpose of showing that at that time (in 1866) congress did not assume, under the authority given by the thirteenth amendment, to adjust what may be called the social rights of men and races in the community; but only to declare and vindicate those fundamental rights which appertain to the essence of citizenship, and the enjoyment or deprivation of which constitutes the essential distinction between freedom and slavery. We must not forget that the province and scope of the thirteenth and fourteenth amendments are different: the former simply abolished slavery: the latter prohibited the states from abridging the privileges or immunities of citizens of the United States, from depriving them of life, liberty, or property without due process of law, and from denying to any the equal protection of the laws. The amendments are different, and the powers of congress under them are different. What congress has power to do under one, it may not have power to do under the other. Under the thirteenth amendment, it has only to do with slavery and its incidents. Under the fourteenth amendment, it has power to counteract and render nugatory all state laws and proceedings which have the effect to abridge any of the privileges or immunities which have the effect to abridge any deprive them of life, liberty, or property without due process of law, or to deny to any of them the equal protection of the laws. Under the thirteenth amendment the legislation, so far as necessary or proper to eradicate all forms and incidents of slavery and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by state legislation or not; under the fourteenth, as we have already shown, it must necessarily be, and can only be, corrective in its character, addressed to counteract and afford relief against state regulations or proceedings. The only question under the present head, therefore, is, whether the refusal to any persons of the accommodations of an inn, or a public conveyance, or a place of public amusement, by an individual, and without any sanction or support from any state law or regulation, does inflict upon such persons any manner of servitude, or form of slavery, as those terms are understood in this country? Many wrongs may be obnoxious to the prohibitions of the fourteenth amendment which are not, in any just sense, incidents or elements of slavery. Such, for example, would be the taking of private property without due process of law; or allowing persons who have committed certain crimes (horse-stealing, for example) to be seized and hung by the posse comitatus without regular trial; or denying to any person, or class of persons, the right to pursue any peaceful avocations allowed to others. What is called calss legislation would belong to this category, and would be obnoxious to the prhibitions of the fourteenth amendment, but would not to the prohibitions of the fourteenth when not involving the idea of any subjection of one man to another. The thirteenth amendment has respect, not to distinctions of race, or class, or color, but to slavery. The fourteenth amendment extends its protection to races and classes, and prohibits any state legislation which has the effect of denying to any race or class, or to any individual, the equal protection of the laws. Now, conceding, for the sake of the argument, that the admission to an inn, a public conveyance, or a place of public amusement, on equal terms with all other citizens, is the right of every man and all classes of men, is it any more than one of those rights which the states by the fourteenth amendment are forbidden to deny to any person? and is the consitution violated until the denial of the right has some state sanction or authority? Can the act of a mere individual, the owner of the inn, the public conveyance, or place of amusement, refusing the accommodation, be justly regarded as imposing any badge of slavery or servitude upon the applicant, or only as inflicting an ordinary civil injury, properly cognizable by the laws of the state, and presumably subject to redress by those laws until the contrary appears? After giving to these questions all the consideration which their importance demands, we are forced to the conclusion that such an act of refusal has nothing to do with slavery or involuntary servitude, and that if it is violative of any right of the party, his redress is to be sought under the laws of the state; or, if those laws are adverse to his rights and do not protect him, his remedy will be found in the corrective legislation which congress has adopted, or may adopt, for counteracting the effect of state laws, or state action, prohibited by the fourteenth amendment. It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal with in other matters of intercourse or business. Innkeepers and public carriers, by the laws of all the states, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodation to all unobjectionable persons who in good faith apply for them. If the laws themselves make any unjust discrimination, amenable to the prohibitions of the fourteenth amendment, congress has full power to afford a remedy under that amendment and in accordance with it. When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected. There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty, and property the same as white citizens; yet no one, at that time, thought that it was any invasion of their personal status as freemen because they were not admitted to all the privileges enjoyed by white citizens, or because they were subjected to discriminations in the enjoyment of accommodations in inns, public conveyances, and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery. If, since that time, the enjoyment of equal rights in all these respects has become established by constitutional enactment, it is not by force of the thirteenth amendment, (which merely abolishes slavery,) but by force of the fourteenth and fifteenth amendments. On the whole, we are of opinion that no countenance of authority for the passage of the law in question can be found in either the thirteenth or fourteenth amendment of the constitution; and no other ground of authority for its passage being suggested, it must necessarily be declared void, at least so far as its operation in the several states is concerned. This conclusion disposes of the cases now under consideration. In the cases of U. S. v. Ryan, and of Robinson v. Memphis & C. R. Co. answer to be given will be, that the first and second sections of the act of congress of March 1, 1875, entitled 'An act to protect all citizens in their civil and legal rights,' are unconstitutional and void, and that judgment should be rendered upon the several indictments in those cases accordingly. And it is so ordered. HARLAN, J., dissents. HARLAN, J., dissenting. The opinion in these cases proceeds, as it seems to me, upon grounds entirely too narrow and artificial. The substance and spirit of the recent amendments of the constitution have been sacrificed by a subtle and ingenious verbal criticism. 'It is not the words of the law but the internal sense of it that makes the law. The letter of the law is the body; the sense and reason of the law is the soul.' Constitutional provisions, adopted in the interest of liberty, and for the purpose of securing, through national legislation, if need be, rights inhering in a state of freedom, and belonging to American citizenship, have been so construed as to defeat the ends the people desired to accomplish, which they attempted to accomplish, and which they supposed they had accomplished by changes in their fundamental law. By this I do not mean that the determination of these cases should have been materially controlled by considerations of mere expediency or policy. I mean only, in this form, to express an earnest conviction that the court has departed from the familiar rule requiring, in the interpretation of constitutional provisions, that full effect be given to the intent with which they were adopted. The purpose of the first section of the act of congress of March 1, 1875, was to prevent race discrimination. It does not assume to define the general conditions and limitations under which inns, public conveyances, and places of public amusement may be conducted, but only declares that such conditions and limitations, whatever they may be, shall not be applied, by way of discrimination, on account of race, color, or previous condition of servitude. The second section provides a penalty against any one denying, or aiding or inciting the denial, to any citizen that equality of right given by the first section, except for reasons by law applicable to citizens of every race or color, and regardless of any previous condition of servitude. There seems to be no substantial difference between my brethren and myself as to what was the purpose of congress; for they say that the essence of the law is, not to declare broadly that all persons shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances, and theaters, but that such enjoyment shall not be subject to any conditions applicable only to citizens of a particular race or color, or who had been in a previous condition of servitude. The effect of the statute, the court says, is that colored citizens, whether formerly slaves or not, and citizens of other races, shall have the same accommodations and privileges in all inns, public conveyances, and places of amusement as are enjoyed by white persons, and vice versa. The court adjudges that congress is without power, under either the thirteenth or fourteenth amendment, to establish such regulations, and that the first and second sections of the statute are, in all their parts, unconstitutional and void. *Before considering the particular language and scope of these amendments it will be proper to recall the relations which, prior to their adoption, subsisted between the national government and the institution of slavery, as indicated by the provisions of the constitution, the legislation of congress, and the decisions of this court. In this mode we may obtain keys with which to open the mind of the people, and discover the thought intended to be expressed. In section 2 of article 4 of the constitution it was provided that 'no person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.' Under the authority of that clause congress passed the fugitive slave law of 1793, establishing the mode for the recovery of a fugitive slave, and prescribing a penalty against any person knowingly and willingly obstructing or hindering the master, his agent or attorney, in seizing, arresting, and recovering the fugitive, or who should rescue the fugitive from him, or who should harbor or conceal the slave after notice that he was a fugitive. In Prigg v. Com. 16 Pet. 539, this court had occasion to define the powers and duties of congress in reference to fugitives from labor. Speaking by Mr. Justice STORY, the court laid down these propositions: That a clause of the constitution conferring a right should not be so construed as to make it shadowy, or unsubstantial, or leave the citizen without a remedial power adequate for its protection, when another mode, equally accordant with the words and the sense in which they were used, would enforce and protect the right so granted; that congress is not restricted to legislation for the exertion of its powers expressly granted; but, for the protection of rights guarantied by the constitution, it may employ, through legislation, such means, not prohibited, as are necessary and proper, or such as are appropriate, to attain the ends proposed; that the constitution recognized the master's right of property in his fugitive slave, and, as incidental thereto, the right of seizing and recovering him, regardless of any state law, or regulation, or local custom whatsoever; and that the right of the master to have his slave, so escaping, delivered up on claim, being guarantied by the constitution, the fair implication was that the national government was clothed with appropriate authority and functions to enforce it. 'The fundamental principle, applicable to all cases of this sort, would seem to be that when the end is required the means are given, and when the duty is enjoined the ability to perform it is contemplated to exist on the part of the functionary to whom it is intrusted.' 'It would be a strange anomaly and forced construction to suppose that the national government meant to rely for the due fulfillment of its own proper duties, and the rights which it intended to secure, upon state legislation, and not upon that of the Union. A fortiori, it would be more objectionable to suppose that a power which was to be the same throughout the Union should be confided to state sovereignty, which could not rightfully act beyond its own territorial limits.' The act of 1793 was, upon these grounds, adjudged to be a constitutional exercise of the powers of congress. It is to be observed, from the report of Prigg's Case, that Pennsylvania, by her attorney general, pressed the argument that the obligation to surrender fugitive slaves was on the states and for the states, subject to the restriction that they should not pass laws or establish regulations liberating such fugitives; that the constitution did not take from the states the right to determine the status of all persons within their respective jurisdictions; that it was for the state in which the alleged fugitive was found to determine, through her courts, or in such modes as she prescribed, whether the person arrested was, in fact, a freeman or a fugitive slave; that the sole power of the general government in the premises was, by judicial instrumentality, to restrain and correct, not to forbid and prevent in the absence of hostile state action; and that, for the general government to assume primary authority to legislate on the subject of fugitive slaves, to the exclusion of the states, would be a dangerous encroachment on state sovereignty. But to such suggestions this court turned a deaf ear, and adjudged that primary legislation by congress to enforce the master's right was authorized by the constitution. We next come to the fugitive slave act of 1850, the constitutionality of which rested, as did that of 1793, solely upon the implied power of congress to enforce the master's rights. The provisions of that act were far in advance of previous legislation. They placed at the disposal of the master seeking to recover his fugitive slave, substantially, the whole power of the nation. It invested commissioners, appointed under the act, with power to summon the posse comitatus for the enforcement of its provisions, and commanded 'all good citizens' to assist in its prompt and efficient execution whenever their services were required as part of the posse comitatus. Without going into the details of that act, it is sufficient to say that congress omitted from it nothing which the utmost ingenuity could suggest as essential to the successful enforcement of the master's claim to recover his fugitive slave. And this court, in Ableman v. Booth, 21 How. 526, adjudged it to be, 'in all of its provisions, fully authorized by the constitution of the United States.' The only other decision prior to the adoption of the recent amendments, to which reference will be made, is Dred Scott v. Sandford, 19 How. 393. That suit was instituted in a circuit court of the United States by Dred Scott, claiming to be a citizen of Missouri, the defendant being a citizen of another state. Its object was to assert the title of himself and family to freedom. The defendant pleaded in abatement to the jurisdiction of the court that Scott—being of African descent, whose ancestors, of pure African blood, were brought into this country, and sold as slaves—was not a citizen. The only matter in issue, said the court, was whether the descendants of slaves so imported and sold, when they should be emancipated, or who were born of parents who had become free before their birth, are citizens of a state in the sense in which the word 'citizen' is used in the constitution of the United States. In determining that question the court instituted an inquiry as to who were citizens of the several states at the adoption of the constitution, and who, at that time, were recognized as the people whose rights and liberties had been violated by the British government. The result was a declaration by this court, speaking through Chief Justice TANEY, that the legislation and histories of the times, and the language used in the Declaration of Independence, showed 'that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that instrument:' that 'they had for more than a century before been regarded as beings of an inferior race, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit;' that he was 'bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it;' and that 'this opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without for a moment doubting the correctness of this opinion.' The judgment of the court was that the words 'people of the United States' and 'citizens' meant the same thing, both describing 'the political body who, according to our republican institutions, form the sovereignty and hold the power and conduct the government through their representatives;' that 'they are what we familiarly call the 'sovereign people,' and every citizen is one of this people and a constituent member of this sovereignty;' but that the class of persons described in the plea in abatement did not compose a portion of this people, were not 'included, and were not intended to be included, under the word 'citizens' in the constitution;' that, therefore, they could 'claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States;' that, 'on the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.' Such were the relations which, prior to the adoption of the thirteenth amendment, existed between the government, whether national or state, and the descendants, whether free or in bondage, of those of African blood who had been imported into this country and sold as slaves. The first section thereof provides that 'neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.' Its second section declares that 'congress shall have power to enforce this article by appropriate legislation.' This amendment was followed by the civil rights act of April 9, 1866, which, among other things, provided that 'all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.' 14 St. 27. The power of congress, in this mode, to elevate the race thus liberated to the plane of national citizenship, was maintained, by the supporters of the act of 1866, to be as full and complete as its power, by general statute, to make the children, being of full age, of persons naturalized in this country, citizens of the United States without going through the process of naturalization. The act of 1866, in this respect, was also likened to that of 1843, in which congress declared 'that the Stockbridge tribe of Indians, and each and every one of them, shall be deemed to be, and are hereby declared to be, citizens of the United States to all intent and purposes, and shall be entitled to all the rights, privileges, and immunities of such citizens, and shall in all respects be subject to the laws of the United States.' If the act of 1866 was valid, as conferring national citizenship upon all embraced by its terms, then the colored race, liberated by the thirteenth amendment, became citizens of the United States prior to the adoption of the fourteenth amendment. But, in the view which I take of the present case, it is not necessary to examine this question. The terms of the thirteenth amendment are absolute and universal. They embrace every race which then was, or might thereafter be, within the United States. No race, as such, can be excluded from the benefits or rights thereby conferred. Yet it is historically true that that amendment was suggested by the condition, in this country, of that race which had been declared by this court to have had, according to the opinion entertained by the most civilized portion of the white race at the time of the adoption of the constitution, 'no rights which the white man was bound to respect,' none of the privileges or immunities secured by that instrument to citizens of the United States. It had reference, in a peculiar sense, to a people which (although the larger part of them were in slavery) had been invited by an act of congress to aid, by their strong right arms, in saving from overthrow a government which, theretofore, by all of its departments, had treated them as an inferior race, with no legal rights or privileges except such as the white race might choose to grant them. These are the circumstances under which the thirteenth amendment was proposed for adoption. They are now recalled only that we may better understand what was in the minds of the people when that amendment was being considered, and what were the mischiefs to be remedied, and the grievances to be redressed. We have seen that the power of congress, by legislation, to enforce the master's right to have his slave delivered up on claim was implied from the recognition and guaranty of that right in the national constitution. But the power conferred by the thirteenth amendment does not rest upon implication or inference. Those who framed it were not ignorant of the discussion, covering many years of the country's history, as to the constitutional power of congress to enact the fugitive slave laws of 1793 and 1850. When, therefore, it was determined, by a change in the fundamental law, to uproot the institution of slavery wherever it existed in this land, and to establish universal freedom, there was a fixed purpose to place the power of congress in the premises beyond the possibility of doubt. Therefore, ex industria, the power to enforce the thirteenth amendment, by appropriate legislation, was expressly granted. Legislation for that purpose, it is conceded, may be direct and primary. But to what specific ends may it be directed? This court has uniformly held that the national government has the power, whether expressly given or not, to secure and protect rights conferred or guarantied by the constitution. U. S. v. Reese, 92 U. S. 214; Strauder v. West Virginia, 100 U. S. 303. That doctrine ought not now to be abandoned, when the inquiry is not as to an implied power to protect the master's rights, but what may congress do, under powers expressly granted, for the protection of freedom, and the rights necessarily inhering in a state of freedom. The thirteenth amendment, my brethren concede, did something more than to prohibit slavery as an institution, resting upon distinctions of race, and upheld by positive law. They admit that it established and decreed universal civil freedom throughout the United States. But did the freedom thus established involve nothing more than exemption from actual slavery? Was nothing more intended than to forbid one man from owning another as property? Was it the purpose of the nation simply to destroy the institution, and then remit the race, theretofore held in bondage, to the several states for such protection, in their civil rights, necessarily growing out of freedom, as those states, in their discretion, choose to provide? Were the states, against whose solemn protest the institution was destroyed, to be left perfectly free, so far as national interference was concerned, to make or allow dircriminations against that race, as such, in the enjoyment of those fundamental rights that inhere in a state of freedom? Had the thirteenth amendment stopped with the sweeping declaration, in its first section, against the existence of slavery and involuntary servitude, except for crime, congress would have had the power, by implication, according to the doctrines of Prigg v. Com., repeated in Strauder v. West Virginia, to protect the freedom thus established, and consequently to secure the enjoyment of such civil rights as were fundamental in freedom. But that it can exert its authority to that extent is now made clear, and was intended to be made clear, by the express grant of power contained in the second section of that amendment. That there are burdens and disabilities which constitute badges of slavery and servitude, and that the express power delegated to congress to enforce, by appropriate legislation, the thirteenth amendment, may be exerted by legislation of a direct and primary character, for the eradication, not simply of the institution, but of its badges and incidents, are propositions which ought to be deemed indisputable. They lie at the very foundation of the civil rights act of 1866. Whether that act was fully authorized by the thirteenth amendment alone, without the support which it afterwards received from the fourteenth amendment, after the adoption of which it was re-enacted with some additions, the court, in its opinion, says it is unnecessary to inquire. But I submit, with all respect to my brethren, that its constitutionality is conclusively shown by other portions of their opinion. It is expressly conceded by them that the thirteenth amendment established freedom; that there are burdens and disabilities, the necessary incidents of slavery, which constitute its substance and visible form; that congress, by the act of 1866, passed in view of the thirteenth amendment, before the fourteenth was adopted, undertook to remove certain burdens and disabilities, the necessary incidents of slavery, and to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell, and convey property as is enjoyed by white citizens; that under the thirteenth amendment congress has to do with slavery and its incidents; and that legislation, so far as necessary or proper to eradicate all forms and incidents of slavery and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by state legislation or not. These propositions being conceded, it is impossible, as it seems to me, to question the constitutional validity of the civil rights act of 1866. I do not contend that the thirteenth amendment invests congress with authority, by legislation, to regulate the entire body of the civil rights which citizens enjoy, or may enjoy, in the several states. But I do hold that since slavery, as the court has repeatedly declared, was the moving or principal cause of the adoption of that amendment, and since that institution rested wholly upon the inferiority, as a race, of those held in bondage, their freedom necessarily involved immunity from, and protection against, all discrimination against them, because of their race, in respect of such civil rights as belong to freemen of other races. Congress, therefore, under its express power to enforce that amendment, by appropriate legislation, may enact laws to protect that people against the deprivation, on account of their race, of any civil rights enjoyed by other freemen in the same state; and such legislation may be of a direct and primary character, operating upon states, their officers and agents, and also upon, at least, such individuals and corporations as exercise public functions and wield power and authority under the state. By way of testing the correctness of this position, let us suppose that, prior to the adoption of the fourteenth amendment, a state had passed a statute denying to freemen of African descent, resident within its limits, the same rights which were accorded to white persons, of making or enforcing contracts, or of inheriting, purchasing, leasing, selling, and conveying property; or a statute subjecting colored people to severer punishment for particular offenses than was prescribed for white persons, or excluding that race from the benefit of the laws exempting homesteads from execution. Recall the legislation of 1865-66 in some of the states, of which this court, in the Slaughter- house Cases disabilities and burdens; curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value; forbade them to appear in the towns in any other character than menial servants; required them to reside on and cultivate the soil, without the right to purchase or own it; excluded them from many occupations of gain; and denied them the privilege of giving testimony in the courts where a white man was a party. 16 Wall. 57. Can there by any doubt that all such legislation might have been reached by direct legislation upon the part of congress under its express power to enforce the thirteenth amendment? Would any court have hesitated to declare that such legislation imposed badges of servitude in conflict with the civil freedom ordained by that amendment? That it would have been also in conflict with the fourteenth amendment, because inconsistent with the fundamental rights of American citizenship, does not prove that it would have been consistent with the thirteenth amendment. What has been said is sufficient to show that the power of congress under the thirteenth amendment is not necessarily restricted to legislation against slavery as an institution upheld by positive law, but may be exerted to the extent at least of protecting the race, so liberated, against discrimination, in respect of legal rights belonging to freemen, where such discrimination is based upon race. It remains now to inquire what are the legal rights of colored persons in respect of the accommodations, privileges, and facilities of public conveyances, inns, and places of public amusement. 1. As to public conveyances on land and water. In New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 382, this court, speaking by Mr. Justice NELSON, said that a common carrier is 'in the exercise of a sort of public office and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned.' To the same effect is Munn v. Illinois, 94 U. S. 113. In Olcott v. Sup'rs, 16 Wall. 694, it was ruled that railroads are public highways, established, by authority of the state, for the public use; that they are none the less public highways because controlled and owned by private corporations; that it is a part of the function of government to make and maintain highways for the conveyance of the public; that no matter who is the agent, and what is the agency, the function performed is that of the state; that although the owners may be private companies, they may be compelled to permit the public to use these works in the manner in which they can be used; that upon these grounds alone have the courts sustained the investiture of railroad corporations with the state's right of eminent domain, or the right of municipal corporations, under legislative authority, to assess, levy, and collect taxes to aid in the construction of railroads. So in Town of Queensbury v. Culver, 19 Wall. 91, it was said that a municipal subscription of railroad stock was in aid of the construction and maintenance of a public highway and for the promotion of a public use. Again, in Township of Pine Grove v. Talcott, 19 Wall. 676: 'Though the corporation [railroad] was private, its work was public; as much so as if it were to be constructed by the state.' To the like effect are numerous adjudications in this and the state courts with which the profession is familiar. The supreme judicial court of Massachusetts, in Inhabitants of Worcester v. Western R. Corp. 4 Metc. 566, said, in reference to a certain railroad: 'The establishment of that great thoroughfare is regarded as a public work, established by public authority, intended for the public use and benefit, the use of which is secured to the whole community, and constitutes, therefore, like a canal, turnpike, or highway, a public easement. * * * It is true that the real and personal property necessary to the establishment and management of the railroad is vested in the corporation; but it is in trust for the public.' In Erie & N. E. R. Co. v. Casey, 26 Pa. St. 287, the court, referring to an act repealing the charter of a railroad, and under which the state took possession of the road, said, speaking by BLACK, J.: 'It is a public highway, solemnly devoted to public use. When the lands were taken it was for such use, or they could not have been taken at all. * * * Railroads established upon land taken by the right of eminent domain by authority of the commonwealth, created by her laws as thoroughfares for commerce, are her highways. No corporation has property in them, though it may have franchises annexed to and exercisable within them.' In many courts it has been held that because of the public interest in such a corporation the land of a railroad company cannot be levied on and sold under execution by a creditor. The sum of the adjudged cases is that a railroad corporation is a governmental agency, created primarily for public purposes, and subject to be controlled for the public benefit. It is upon that ground that the state, when unfettered by contract, may regulate, in its discretion, the rates of fares of passengers and freight. And upon this ground, too, the state may regulate the entire management of railroads in all matters affecting the convenience and safety of the public; as, for example, by regulating speed, compelling stops of prescribed length at stations, and prohibiting discriminations and favoritism. If the corporation neglect or refuse to discharge its duties to the public, it may be coerced to do so by appropriate proceedings in the name or in behalf of the state. Such being the relations these corporations hold to the public, it would seem that the right of a colored person to use an improved public highway, upon the terms accorded to freemen of other races, is as fundamental in the state of freedom, established in this country, as are any of the rights which my brethren concede to be so far fundamental as to be deemed the essence of civil freedom. 'Personal liberty consists,' says Blackstone, 'in the power of locomotion, of changing situation, or removing one's person to whatever place one's own inclination may direct, without restraint, unless by due course of law.' But of what value is this right of locomotion, if it may be clogged by such burdens as congress intended by the act of 1875 to remove? They are burdens which lay at the very foundation of the institution of slavery as it once existed. They are not to be sustained, except upon the assumption that there is still, in this land of universal liberty, a class which may yet be discrimated against, even in respect of rights of a character so essential and so supreme, that, deprived of their enjoyment, in common with others, a freeman is not only branded as one inferior and infected, but, in the competitions of life, is robbed of some of the most necessary means of existence; and all this solely because they belong to a particular race which the nation has liberated. The thirteenth amendment alone obliterated the race line, so far as all rights fundamental in a state of freedom are concerned. 2. As to inns. The same general observations which have been made as to railroads are applicable to inns. The word 'inn' has a technical legal signification. It means, in the act of 1875, just what it meant at common law. A mere private boarding-house is not an inn, nor is its keeper subject to the responsibilities, or entitled to the privileges of a common innkeeper. 'To constitute one an innkeeper, within the legal force of that term, he must keep a house of entertainment or lodging for all travelers or wayfarers who might choose to accept the same, being of good character or conduct.' Redf. Carr. § 575. Says Judge STORY: 'An innkeeper may be defined to be the keeper of a common inn for the lodging and entertainment of travelers and passengers, their horses and attendants. An innkeeper is bound to take in all travelers and wayfaring persons, and to entertain them, if he can accommodate them, for a reasonable compensation; and he must guard their goods with proper diligence. * * * If an innkeeper improperly refuses to receive or provide for a guest, he is liable to be indicted therefor. * * * They [carriers of passengers] are no more at liberty to refuse a passenger, if they have sufficient room and accommodations, than an innkeeper is to refuse suitable room and accommodations to a guest.' Story, Bailm. §§ 475, 476. Said Mr. Justice COLERIDGE, in Rex v. Ivens, 7 Car. & P. 213, (32 E. C. L. 495:) 'An indictment lies against an innkeeper who refuses to receive a guest, he having at the time room in his house; and either the price of the guest's entertainment being tendered to him, or such circumstances occurring as will dispense with that tender. This law is founded in good sense. The innkeeper is not to select his guests. He has no right to say to one, you shall come to my inn, and to another you shall not, as every one coming and conducting himself in a proper manner has a right to be received; and for this purpose innkeepers are a sort of public servants, they having in return a kind of privilege of entertaining travelers and supplying them with that they want.' These authorities are sufficient to show a keeper of an inn is in the exercise of a quasi public employment. The law gives him special privileges, and he is charged with certain duties and responsibilities to the public. The public nature of his employment forbids him from discriminating against any person asking admission as a guest on account of the race or color of that person. 3. As to places of public amusement. It may be argued that the managers of such places have no duties to perform with which the public are, in any legal sense, concerned, or with which the public have any right to interfere; and that the exclusion of a black man from a place of public amusement on account of his race, or the denial to him, on that ground, of equal accommodations at such places, violates no legal right for the vindication of which he may invoke the aid of the courts. My answer to that argument is that places of public amusement, within the meaning of the act of 1875, are such as are established and maintained under direct license of the law. The authority to establish and maintain them comes from the public. The colored race is a part of that public. The local government granting the license represents them as well as all other races within its jurisdiction. A license from the public to establish a place of public amusement, imports, in law, equality of right, at such places, among all the members of that public. This must be so, unless it be—which I deny—that the common municipal government of all the people may, in the exertion of its powers, conferred for the benefit of all, discriminate or authorize discrimination against a particular race, solely because of its former condition of servitude. I also submit whether it can be said—in view of the doctrines of this court as announced in Munn v. Illinois, U. S. 123, and reaf firmed in Peik v. Chicago & N. W. Ry. Co. 94 U. S. 178—that the management of places of public amusement is a purely private matter, with which government has no rightful concern. In the Munn Case the question was whether the state of Illinois could fix, by law, the maximum of charges for the storage of grain in certain warehouses in that state—the private property of individual citizens. After quoting a remark attributed to Lord Chief Justice HALE, to the effect that when private property is 'affected with a public interest it ceases to be juris privati only,' the court says: 'Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he in effect grants to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use, but, so long as he maintains the use, he must submit to the control.' The doctrines of Munn v. Illinois have never been modified by this court, and I am justified, upon the authority of that case, in saying that places of public amusement, conducted under the authority of the law, are clothed with a public interest, because used in a manner to make them of public consequence and to affect the community at large. The law may therefore regulate, to some extent, the mode in which they shall be conducted, and consequently the public have rights in respect of such places which may be vindicated by the law. It is consequently not a matter purely of private concern. Congress has not, in these matters, entered the domain of state control and supervision. It does not assume to prescribe the general conditions and limitations under which inns, public conveyances, and places of public amusement shall be conducted or managed. It simply declares in effect that since the nation has established universal freedom in this country for all time, there shall be no discrimination, based merely upon race or color, in respect of the legal rights in the accommodations and advantages of public conveyances, inns, and places of public amusement. I am of opinion that such discrimination is a badge of servitude, the imposition of which congress may prevent under its power, through appropriate legislation, to enforce the thirteenth amendment; and consequently, without reference to its enlarged power under the fourteenth amendment, the act of March 1, 1875, is not, in my judgment, repugnant to the constitution. It remains now to consider these cases with reference to the power congress has possessed since the adoption of the fourteenth amendment. Before the adoption of the recent amendments it had become, as we have seen, the established doctrine of this court that negroes, whose ancestors had been imported and sold as slaves, could not become citizens of a state, or even of the United States, with the rights and privileges guarantied to citizens by the national constitution; further, that one might have all the rights and privileges of a citizen of a state without being a citizen in the sense in which that word was used in the national constitution, and without being entitled to the privileges and immunities of citizens of the several states. Still further, between the adoption of the thirteenth amendment and the proposal by congress of the fourteenth amendment, on June 16, 1866, the statute-books of several of the states, as we have seen, had become loaded down with enactments which, under the guise of apprentice, vagrant, and contract regulations, sought to keep the colored race in a condition, practically, of servitude. It was openly announced that whatever rights persons of that race might have as freemen, under the guaranties of the national constitution, they could not become citizens of a state, with the rights belonging to citizens, except by the consent of such state; consequently, that their civil rights, as citizens of the state, depended entirely upon state legislation. To meet this new peril to the black race, that the purposes of the nation might not be doubted or defeated, and by way of further enlargement of the power of congress, the fourteenth amendment was proposed for adoption. Remembering that this court, in the Slaughter-house Cases, declared that the one pervading purpose found in all the recent amendments, lying at the foundation of each, and without which none of them would have been suggested, was 'the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppression of those who had formerly exercised unlimited dominion over him;' that each amendment was addressed primarily to the grievances of that race,—let us proceed to consider the language of the fourteenth amendment. Its first and fifth sections are in these words: 'Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. * * * 'Sec. 5. That congress shall have power to enforce, by appropriate legislation, the provisions of this article.' It was adjudged in Strauder v. West Virginia and Ex parte Virginia, 100 U. S. 307, 345, and my brethren concede, that positive rights and privileges were intended to be secured, and are in fact secured, by the fourteenth amendment. But when, under what circumstances, and to what extent may congress, by means of legislation, exert its power to enforce the provisions of this amendment? The logic of the opinion of the majority of the court—the foundation upon which its whole reasoning seems to rest—is that the general government cannot, in advance of hostile state laws or hostile state proceedings, actively interfere for the protection of any of the rights, privileges, and immunities secured by the fourteenth amendment. It is said that such rights, privileges, and immunities are secured by way of prohibition against state laws and state proceedings affecting such rights and privileges, and by power given to congress to legislate for the purpose of carrying such prohibition into effect; also, that congressional legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect. In illustration of its position, the court refers to the clause of the constitution forbidding the passage by a state of any law impairing the obligation of contracts. The clause does not, I submit, furnish a proper illustration of the scope and effect of the fifth section of the fourteenth amendment. No express power is given congress to enforce, by primary direct legislation, the prohibition upon state laws impairing the obligation of contracts. Authority is, indeed, conferred to enact all necessary and proper laws for carrying into execution the enumerated powers of congress, and all other powers vested by the constitution in the government of the United States, or in any department or officer thereof. And, as heretofore shown, there is also, by necessary implication, power in congress, by legislation, to protect a right derived from the national constitution. But a prohibition upon a state is not a power in congress or in the national government. It is simply a denial of power to the state. And the only mode in which the inhibition upon state laws impairing the obligation of contracts can be enforced, is, indirectly, through the courts, in suits where the parties raise some question as to the constitutional validity of such laws. The judicial power of the United States extends to such suits, for the reason that they are suits arising under the constitution. The fourteenth amendment presents the first instance in our history of the investiture of congress with affirmative power, by legislation, to enforce an express prohibition upon the states. It is not said that the judicial power of the nation may be exerted for the enforcement of that amendment. No enlargement of the judicial power was required, for it is clear that had the fifth section of the fourteenth amendment been entirely omitted, the judiciary could have stricken down all state laws and nullified all state proceedings in hostility to rights and privileges secured or recognized by that amendment. The power given is, in terms, by congressional legislation, to enforce the provisions of the amendment. The assumption that this amendment consists wholly of prohibitions upon state laws and state proceedings in hostility to its provisions, is unauthorized by its language. The first clause of the first section—'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside'—is of a distinctly affirmative character. In its application to the colored race, previously liberated, it created and granted, as well citizenship of the United States, as citizenship of the state in which they respectively resided. It introduced all of that race, whose ancestors had been imported and sold as slaves, at once, into the political community known as the 'People of the United States.' They became, instantly, citizens of the United States, and of their respective states. Further, they were brought, by this supreme act of the nation, within the direct operation of that provision of the constitution which declares that 'the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.' Article 4, § 2. The citizenship thus acquired by that race, in virtue of an affirmative grant by the nation, may be protected, not alone by the judicial branch of the government, but by congressional legislation of a primary direct character; this, because the power of congress is not restricted to the enforcement of prohibitions upon state laws or state action. It is, in terms distinct and positive, to enforce 'the provisions of this article' of amendment; not simply those of a prohibitive character, but the provisions,—all of the provisions,—affirmative and prohibitive, of the amendment. It is, therefore, a grave misconception to suppose that the fifth section of the amendment has reference exclusively to express prohibitions upon state laws or state action. If any right was created by that amendment, the grant of power, through appropriate legislation, to enforce its provisions authorizes congress, by means of legislation operating throughout the entire Union, to guard, secure, and protect that right. It is, therefore, an essential inquiry what, if any, right, privilege, or immunity was given by the nation to colored persons when they were made citizens of the state in which they reside? Did the national grant of state citizenship to that race, of its own force, invest them with any rights, privileges, and immunities whatever? That they became entitled, upon the adoption of the fourteenth amendment, 'to all privileges and immunities of citizens in the several states,' within the meaning of section 2 of article 4 of the constitution, no one, I suppose, will for a moment question. What are the privileges and immunities to which, by that clause of the constitution, they became entitled? To this it may be answered, generally, upon the authority of the adjudged cases, that they are those which are fundamental in citizenship in a free government, 'common to the citizens in the latter states under their constitutions and laws by virtue of their being citizens.' Of that provision it has been said, with the approval of this court, that no other one in the constitution has tended so strongly to constitute the citizens of the United States one people. Ward v. Maryland, 12 Wall. 430; Corfield v. Coryell, 4 Wash. C. C. 371; Paul v. Virginia, 8 Wall. 180; Slaughter-house Cases, 16 Wall. 77. Although this court has wisely forborne any attempt, by a comprehensive definition, to indicate all the privileges and immunities to which the citizens of each state are entitled of right to enjoy in the several states, I hazard nothing, in view of former adjudications, in saying that no state can sustain her denial to colored citizens of other states, while within her limits, of privileges or immunities, fundamental in republican citizenship, upon the ground that she accords such privileges and immunities only to her white citizens and withholds them from her colored citizens. The colored citizens of other states, within the jurisdiction of that state, could claim, under the constitution, every privilege and immunity which that state secures to her white citizens. Otherwise, it would be in the power of any state, by discriminating class legislation against its own citizens of a particular race or color, to withhold from citizens of other states, belonging to that proscribed race, when within her limits, privileges and immunities of the character regarded by all courts as fundamental in citizenship; and that, too, when the constitutional guaranty is that the citizens of each state shall be entitled to 'all privileges and immunities of citizens of the several states.' No state may, by discrimination against a portion of its own citizens of a particular race, in respect of privileges and immunities fundamental in citizenship, impair the constitutional right of citizens of other states, of whatever race, to enjoy in that state all such privileges and immunities as are there accorded to her most favored citizens. A colored citizen of Ohio or Indiana, being in the jurisdiction of Tennessee, is entitled to enjoy any privilege or immunity, fundamental in citizenship, which is given to citizens of the white race in the latter state. It is not to be supposed that any one will controvert this proposition. But what was secured to colored citizens of the United States as between them and their respective states—by the grant to them of state citizenship? With what rights, privileges, or immunities did this grant from the nation invest them? There is one, if there be no others—exemption from race discrimination in respect of any civil right belonging to citizens of the white race in the same state. That, surely, is their constitutional privilege when within the jurisdiction of other states. And such must be their constitutional right, in their own state, unless the recent amendments be 'splendid baubles,' thrown out to delude those who deserved fair and generous treatment at the hands of the nation. Citizenship in this country necessarily imports equality of civil rights among citizens of every race in the same state. It is fundamental in American citizenship that, in respect of such rights, there shall be no discrimination by the state, or its officers, or by individuals, or corporations exercising public functions or authority, against any citizen because of his race or previous condition of servitude. In U. S. v. Cruikshank, 92 U. S. 555, it was said that 'the equality of rights of citizens is a principle of republicanism.' And in Ex parte Virginia, 100 U. S. 344, the emphatic language of this court is that 'one great purpose of these amendments was to raise the colored race from that condition of inferiority and servitude in which most of them had previously stood, into perfect equality of civil rights with all other persons within the jurisdiction of the states.' So, in Strauder v. West Virginia, Id. 306, the court, alluding to the fourteenth amendment, said: 'This is one of a series of constitutional provisions having a common purpose, namely, securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy.' Again, in Neal v. Delaware, 103 U. S. 386, it was ruled that this amendment was designed, primarily, 'to secure to the colored race, thereby invested with the rights, privileges, and responsibilities of citizenship, the enjoyment of all the civil rights that, under the law, are enjoyed by white persons.' Much light is thrown upon this part of the discussion by the language of this court in reference to the fifteenth amendment. In U. S. v. Cruikshank it was said: 'In U. S. v. Reese, 92 U. S. 214, we held that the fifteenth amendment has invested the citizens of the United States with a new constitutional right, which is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. From this it appears that the right of suffrage is not a necessary attribute of national citizenship, but that exemption from discrimination in the exercise of that right on account of race, etc., is. The right to vote in the states comes from the states; but the right of exemption from the prohibited discrimination comes from the United States. The first has not been granted or secured by the constitution of the United States, but the last has been.' Here, in language at once clear and forcible, is stated the principle for which I contend. It can hardly be claimed that exemption from race discrimination, in respect of civil rights, against those to whom state citizenship was granted by the nation, is any less for the colored race a new constitutional right, derived from and secured by the national constitution, than is exemption from such discrimination in the exercise of the elective franchise. It cannot be that the latter is an attribute of national citizenship, while the other is not essential in national citizenship, or fundamental in state citizenship. If, then, exemption from discrimination in respect of civil rights is a new constitutional right, secured by the grant of state citizenship to colored citizens of the United States, why may not the nation, by means of its own legislation of a primary direct character, guard, protect, and enforce that right? It is a right and privilege which the nation conferred. It did not come from the states in which those colored citizens reside. It has been the established doctrine of this court during all its history, accepted as vital to the national supremacy, that congress, in the absence of a positive delegation of power to the state legislatures, may by legislation enforce and protect any right derived from or created by the national constitution. It was so declared in Prigg v. Com. It was reiterated in U. S. v. Reese, 92 U. S. 214, where the court said that 'rights and immunities created by and dependent upon the constitution of the United States can be protected by congress. The form and manner of the protection may be such as congress, in the legitimate exercise of its discretion, shall provide. These may be varied to meet the necessities of the particular right to protected.' It was distinctly reaffirmed in Strauder v. West Virginia, 100 U. S. 310, where we said that 'a right or immunity created by the constitution or only guarantied by it, even without any express delegation of power, may be protected by congress.' Will any one claim, in view of the declarations of this court in former cases, or even without them, that exemption of colored citizens within their states from race discrimination, in respect of the civil rights of citizens, is not an immunity created or derived from the national constitution? This court has always given a broad and liberal construction to the constitution, so as to enable congress, by legislation, to enforce rights secured by that instrument. The legislation congress may enact, in execution of its power to enforce the provisions of this amendment, is that which is appropriate to protect the right granted. Under given circumstances, that which the court characterizes as corrective legislation might be sufficient. Under other circumstances primary direct legislation may be required. But it is for congress, not the judiciary, to say which is best adapted to the end to be attained. In U. S. v. Fisher, 2 Cranch, 358, this court said that 'congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the constitution.' 'The sound construction of the constitution,' said Chief Justice MARSHALL, 'must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate,—let it be within the scope of the constitution,—and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.' McCulloch v. Maryland, 4 Wheat. 423. Must these rules of construction be now abandoned? Are the powers of the national legislature to be restrained in proportion as the rights and privileges, derived from the nation, are more valuable? Are constitutional provisions, enacted to secure the dearest rights of freemen and citizens, to be subjected to that rule of construction, applicable to private instruments, which requires that the words to be interpreted must be taken most strongly against those who employ them? Or shall it be remembered that 'a constitution of government, founded by the people for themselves and their posterity, and for objects of the most momentous nature,—for perpetual union, for the establishment of justice, for the general welfare, and for a perpetuation of the blessings of liberty,—necessarily requires that every interpretation of its powers should have a constant reference to these objects? No interpretation of the words in which those powers are granted can be a sound one which narrows down their ordinary import so as to defeat those objects.' 1 Story, Const. § 422. The opinion of the court, as I have said, proceeds upon the ground that the power of congress to legislate for the protection of the rights and privileges secured by the fourteenth amendment cannot be brought into activity except with the view, and as it may become necessary, to correct and annul state laws and state proceedings in hostility to such rights and privileges. In the absence of state laws or state action, adverse to such rights and privileges, the nation may not actively interfere for their protection and security. Such I understand to be the position of my brethren. If the grant to colored citizens of the United States of citizenship in their respective states imports exemption from race discrimination, in their states, in respect of the civil rights belonging to citizenship, then, to hold that the amendment remits that right to the states for their protection, primarily, and stays the hands of the nation, until it is assailed by state laws or state proceedings, is to adjudge that the amendment, so far from enlarging the powers of congress,—as we have heretofore said it did,—not only curtails them, but reverses the policy which the general government has pursued from its very organization. Such an interpretation of the amendment is a denial to congress of the power, by appropriate legislation, to enforce one of its provisions. In view of the circumstances under which the recent amendments were incorporated into the constitution, and especially in view of the peculiar character of the new rights they created and secured, it ought not to be presumed that the general government has abdicated its authority, by national legislation, direct and primary in its character, to guard and protect privileges and immunities secured by that instrument. Such an interpretation of the constitution ought not to be accepted if it be possible to avoid it. Its acceptance would lead to this anomalous result: that whereas, prior to the amendments, congress, with the sanction of this court, passed the most stringent laws operating directly and primarily upon states, and their officers and agents, as well as upon individuals—in vindication of slavery and the right of the master, it may not now, by legislation of a like primary and direct character, guard, protect, and secure the freedom established, and the most essential right of the citizenship granted, by the constitutional amendments. I venture, with all respect for the opinion of others, to insist that the national legislature may, without transcending the limits of the constitution, do for human liberty and the fundamental rights of American citizenship, what it did, with the sanction of this court, for the protection of slavery and the rights of the masters of fugitive slaves. If fugitive slave laws, providing modes and prescribing penalties whereby the master could seize and recover his fugitive slave, were legitimate exertions of an implied power to protect and enforce a right recognized by the constitution, why shall the hands of congress be tied, so that—under an express power, by appropriate legislation, to enforce a constitutional provision, granting citizenship—it may not, by means of direct legislation, bring the whole power of this nation to bear upon states and their officers, and upon such individuals and corporations exercising public functions, as assume to abridge, impair, or deny rights confessedly secured by the supreme law of the land? It does not seem to me that the fact that, by the second clause of the first section of the fourteenth amendment, the states are expressly prohibited from making or enforcing laws abridging the privileges and immunities of citizens of the United States, furnishes any sufficient reason for holding or maintaining that the amendment was intended to deny congress the power, by general, primary, and direct legislation, of protecting citizens of the United States, being also citizens of their respective states, against discrimination, in respect to their rights as citizens, founded on race, color, or previous condition of servitude. Such an interpretation of the amendment is plainly repugnant to its fifth section, conferring upon congress power, by appropriate legislation, to enforce, not merely the provisions containing prohibitions upon the states, but all of the provisions of the amendment, including the provisions, express and implied, of the grant of citizenship in the first clause of the first section of the article. This alone is sufficient for holding that congress is not restricted to the enactment of laws adapted to counteract and redress the operation of state legislation, or the action of state officers of the character prohibited by the amendment. It was perfectly well known that the great danger to the equal enjoyment by citizens of their rights, as citizens, was to be apprehended, not altogether from unfriendly state legislation, but from the hostile action of corporations and individuals in the states. And it is to be presumed that it was intended, by that section, to clothe congress with power and authority to meet that danger. If the rights intended to be secured by the act of 1875 are such as belong to the citizen, in common or equally with other citizens in the same state, then it is not to be denied that such legislation is appropriate to the end which congress is authorized to accomplish, viz., to protect the citizen, in respect of such rights, against discrimination on account of his race. As to the prohibition in the fourteenth amendment upon the making or enforcing of state laws abridging the privileges of citizens of the United States, it was impossible for any state to have enforced laws of that character. The judiciary could have annulled all such legislation under the provision that the constitution shall be the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding. The states were already under an implied prohibition not to abridge any privilege or immunity belonging to citizens of the United States as such. Consequently, the prohibition upon state laws hostile to the rights belonging to citizens of the United States, was intended only as an express limitation on the powers of the states, and was not intended to diminish, in the slightest degree, the authority which ten nation has always exercised, of protecting, by means of its own direct legislation, rights created or secured by the constitution. The purpose not to diminish the national authority is distinctly negatived by the express grant of power, by legislation, to enforce every provision of the amendment, including that which, by the grant of citizenship in the state, secures exemption from race discrimination in respect of the civil rights of citizens. It is said that any interpetation of the fourteenth amendment different from that adopted by the court, would authorize congress to enact a municipal code for all the states, covering every matter affecting the life, liberty, and property of the citizens of the several states. Not so. Prior to the adoption of that amendment the constitutions of the several states, without, perhaps, an exception, secured all persons against deprivation of life, liberty, or property, otherwise than by due process of law, and, in some form, recognized the right of all persons to the equal protection of the laws. These rights, therefore, existed before that amendment was proposed or adopted. If, by reason of that fact, it be assumed that protection in these rights of persons still rests, primarily, with the states, and that congress may not interfere except to enforce, by means of corrective legislation, the prohibitions upon state laws or state proceedings inconsistent with those rights, it does not at all follow that privileges which have been granted by the nation may not be protected by primary legislation upon the part of congress. The rights and immunities of persons recognized in the prohibitive clauses of the amendments were always under the protection, primarily, of the states, while rights created by or derived from the United States have always been, and, in the nature of things, should always be, primarily, under the protection of the general government. Exemption from race discrimination in respect of the civil rights which are fundamental in citizenship in a republican government, is, as we have seen, a new constitutional right, created by the nation, with express power in congress, by legislation, to enforce the constitutional provision from which it is derived. If, in some sense, such race discrimination is a denial of the equal protection of the laws, within the letter of the last clause of the first section, it cannot be possible that a mere prohibition upon state denial of such equal protection to persons within its jurisdiction, or a prohibition upon state laws abridging the privileges and immunities of citizens of the United States, takes from the nation the power which it has uniformly exercised of protecting, by primary direct legislation, those privileges and immunities which existed under the constitution before the adoption of the fourteenth amendment, or which have been created by that amendment in behalf of those thereby made citizens of their respective states. It was said of Dred Scott v. Sandford that this court in that case overruled the action of two generations, virtually inserted a new clause in the constitution, changed its character, and made a new departure in the workings of the federal government. I may be permitted to say that if the recent amendments are so construed that congress may not, in its own discretion, and independently of the action or non-action of the states, provide, by legislation of a primary and direct character, for the security of rights created by the national constitution; if it be adjudged that the obligation to protect the fundamental privileges and immunities granted by the fourteenth amendment to citizens residing in the several states, rests, primarily, not on the nation, but on the states; if it be further adjudged that individuals and corporations exercising public functions may, without liability to direct primary legislation on the part of congress, make the race of citizens the ground for denying them that equality of civil rights which the constitution ordains as a principle of republican citizenship,—then, not only the foundations upon which the national supremacy has always securely rested will be materially disturbed, but we shall enter upon an era of constitutional law when the rights of freedom and American citizenship cannot receive from the nation that efficient protection which heretofore was accorded to slavery and the rights of the master. But if it were conceded that the power of congress could not be brought into activity until the rights specified in the act of 1875 had been abridged or denied by some state law or state action, I maintain that the decision of the court is erroneous. There has been adverse state action within the fourteenth amendment as heretofore interpreted by this court. I allude to Ex parte Virginia, supra. It appears, in that case, that one Cole, judge of a county court, was charged with the duty, by the laws of Virginia, of selecting grand and petit jurors. The law of the state did not authorize or permit him, in making such selections, to discriminate against colored citizens because of their race. But he was indicted in the federal court, under the act of 1875, for making such discriminations. The attorney general of Virginia contended before us that the state had done its duty, and had not authorized or directed that county judge to do what he was charged with having done, and consequently that the state had not denied to the colored race the equal protection of the laws, and the act of Cole must therefore be deemed his individual act, in contravention of the will of the state. Plausible as this argument was, it failed to convince this court, and after saying that the fourteenth amendment had reference to the political body denominated a state, 'by whatever instruments or in whatever modes that action may be taken,' and that a state acts by its legislative, executive, and judicial authorities, and can act in no other way, we proceeded: 'The constitutional provision, therefore, must mean that no agency of the state, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a state government, deprives another of property, life, or liberty without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and, as he acts under the name and for the state, and is clothed with the state's power, his act is that of the state. This must be so, or the constitutional prohibition has no meaning. Then the state has clothed one of its agents with power to annul or evade it. But the constitutional amendment was ordained for a purpose. It was to secure equal rights to all persons, and, to insure to all persons the enjoyment of such rights, power was given to congress to enforce its provisions by appropriate legislation. Such legislation must act upon persons, not upon the abstract thing denominated a state, but upon the persons who are the agents of the state, in the denial of the rights which were intended to be secured.' 100 U.S. 346, 347. In every material sense applicable to the practical enforcement of the fourteenth amendment, railroad corporations, keepers of inns, and managers of places of public amusement are agents of the state, because amenable, in respect of their public duties and functions, to public regulation. It seems to me that, within the principle settled in Ex parte Virginia, a denial by these instrumentalities of the state to the citizen, because of his race, of that equality of civil rights secured to him by law, is a denial by the state within the meaning of the fourteenth amendment. If it be not, then that race is left, in respect of the civil rights under discussion, practically at the mercy of corporations and individuals wielding power under public authority. But the court says that congress did not, in the act of 1866, assume, under the authority given by the thirteenth amendment, to adjust what may be called the social rights of men and races in the community. I agree that government has nothing to do with social, as distinguished from technically legal, rights of individuals. No government ever has brought, or ever can bring, its people into social intercourse against their wishes. Whether one person will permit or maintain social relations with another is a matter with which government has no concern. I agree that if one citizen chooses not to hold social intercourse with another, he is not and cannot be made amenable to the law for his conduct in that regard; for no legal right of a citizen is violated by the refusal of others to maintain merely social relations with him, even upon grounds of race. What I affirm is that no state, nor the officers of any state, nor any corporation or individual wielding power under state authority for the public benefit or the public convenience, can, consistently either with the freedom established by the fundamental law, or with that equality of civil rights which now belongs to every citizen, discriminate against freemen or citizens, in their civil rights, because of their race, or because they once labored under disabilities imposed upon them as a race. The rights which congress, by the act of 1875, endeavored to secure and protect are legal, not social, rights. The right, for instance, of a colored citizen to use the accommodations of a public highway upon the same terms as are permitted to white citizens is no more a social right than his right, under the law, to use the public streets of a city, or a town, or a turnpike road, or a public market, or a post-office, or his right to sit in a public building with others, of whatever race, for the purpose of hearing the political questions of the day discussed. Scarcely a day passes without our seeing in this court-room citizens of the white and black races sitting side by side watching the progress of our business. It would never occur to any one that the presence of a colored citizen in a court-house or court-room was an invasion of the social rights of white persons who may frequent such places. And yet such a suggestion would be quite as sound in law—1 say it with all respect—as is the suggestion that the claim of a colored citizen to use, upon the same terms as is permitted to white citizens, the accommodations of public highways, or public inns, or places of public amusement, established under the license of the law, is an invasion of the social rights of the white race. The court, in its opinion, reserves the question whether congress, in the exercise of its power to regulate commerce among the several states, might or might not pass a law regulating rights in public conveyances passing from one state to anoher. I beg to suggest that that precise question was substantially presented here in the only one of these cases relating to railroads,—Robinson v. Memphis & C. R. Co. In that case it appears that Mrs. Robinson, a citizen of Mississippi, purchased a railroad ticket entitling her to be carried from Grand Junction, Tennessee, to Lynchburg, Virginia. Might not the act of 1875 be maintained in that case, as applicable at least to commerce between the states, notwithstanding it does not, upon its face, profess to have been passed in pursuance of the power given to congress to regulate commerce? Has it ever been held that the judiciary should overturn a statute because the legislative department did not accurately recite therein the particular provision of the constitution authorizing its enactment? We have often enforced municipal bonds in aid of railroad subscriptions where they failed to recite the statute authorizing their issue, but recited one which did not sustain their validity. The inquiry in such cases has been, was there in any statute authority for the execution of the bonds? Upon this branch of the case it may be remarked that the state of Louisiana, in 1869, passed a statute giving to passengers, without regard to race or color, equality of right in the accommodations of railroad and street cars, steam-boats, or other water-crafts, stage-coaches, omnibuses, or other vehicles. But in Hall v. De Cuir, 95 U. S. 487, that act was pronounced unconstitutional so far as it related to commerce between the states, this court saying that 'if the public good requires such legislation it must come from congress and not from the states.' I suggest that it may become a pertinent inquiry whether congress may, in the exertion of its power to regulate commerce among the states, enforce among passengers on public conveyances equality of right without regard to race, color, or previous condition of servitude, if it be true—which I do not admit—that such legislation would be an interference by government with the social rights of the people. My brethren say that when a man has emerged from slavery, and by the aid of beneficient legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected. It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws. What the nation, through congress, has sought to accomplish in reference to that race is, what had already been done in every state in the Union for the white race, to secure and protect rights belonging to them as freemen and citizens; nothing more. The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizens. The difficulty has been to compel a recognition of their legal right to take that rank, and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained. At every step in this direction the nation has been confronted with class tyrany, which a contemporary English historian says is, of all tyrannies, the most intolerable, 'for it is ubiquitous in its operation, and weighs, perhaps, most heavily on those whose obscurity or distance would withdraw them from the notice of a single despot.' To-day it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time it may be some other race that will fall under the ban. If the constitutional amendments be enforced, according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may choose to grant. The supreme law of the land has decreed that no authority shall be exercised in this country upon the basis of discrimination, in respect of civil rights, against freemen and citizens because of their race, color, or previous condition of servitude. To that decree—for the due enforcement of which, by appropriate legislation, congress has been invested with express power—every one must bow, whatever may have been, or whatever now are, his individual views as to the wisdom or policy, either of the recent changes in the fundamental law, or of the legislation which has been enacted to give them effect. For the reasons stated I feel constrained to withhold my assent to the opinion of the court.

108.US.218

A court of equity will extend no aid to sustain a claim to a trade-mark of an article which is put forth with a misrepresentation to the public as to the manufacturer of the article, and as to the place where it is manufactured, both being originally circumstances to guide the purchaser of the medicine. When it is the object of a trade-mark to indicate the origin of manufactured goods, and a person affixes to goods of his own manufacture a trade-mark which declares that they are goods of the manufacture of some other person, it is a fraud upon the public which no court of equity will countenance. The plaintiff claimed to be the owner of a patent medicine and of a trademark to distinguish it. The medicine was manufactured by the plaintiff in New York; the trade-mark declared that it was manufactured by another party in Massachusetts : Held, That he was entitled to no relief against a person using the same trade-mark in Maine.

In the view we take of the case it will not be necessary to consider the first defense mentioned, nor the second, so far as to determine whether the right to use the words mentioned as a trade-mark was forfeited absolutely by the assignor's misrepresentations as to the manufacture of the article. It is sufficient for the disposition of the case that the misrepresentation has been continued by the complainant. A court of equity will extend no aid to sustain a claim to a trade-mark of an article which is put forth with a misrepresentation to the public as to the manufacturer of the article, and as to the place where it is manufactured, both of which particulars were originally circumstances to guide the purchaser of the medicine. It is admitted that whatever value the medicine possesses was given to it by its original manufacturer, Moses Atwood. He lived in Georgetown, Massachusetts. He manufactured the medicine there. He sold it with the designation that it was his preparation, 'Atwood's Vegetable Physical Jaundice Bitters,' and was manufactured there by him. As the medicine was tried and proved to be useful, it was sought for under that designation, and that purchasers might not be misled, it was always accompanied with a label, showing by whom and at what place it was prepared. These statements were deemed important in promoting the use of the article and its sale, or they would not have been continued by the assignees of the original inventor. And yet they could not be used with any honest purpose when both statements had ceased to be true. It is not honest to state that a medicine is manufactured by Moses Atwood, of Georgetown, Massachusetts, when it is manufactured by the Manhattan Medicine Company in the city of New York. Any one has as unquestionable right to affix to articles manufactured by him a mark or device not previously appropriated, to distinguish them from articles of the same general character manufactured or sold by others. He may thus notify the public of the origin of the article, and secure to himself the benefits of any particular excellence it may possess from the manner or materials of its manufacture. His trade-mark is both a sign of the quality of the article and an assurance to the public that it is the genuine product of his manufacture. It thus often becomes of great value to him, and in its exclusive use the court will protect him against attempts of others to pass off their products upon the public as his. This protection is afforded not only as a matter of justice to him, but to prevent imposition upon the public. Manuf'g Co. v. Trainer, 101 U. S. 54. The object of the trade-mark being to indicate, by its meaning or association, the origin or ownership of the article, it would seem that when a right to its use is transferred to others, either by act of the original manufacturer or by operation of law, the fact of transfer should be stated in connection with its use; otherwise a deception would be practiced upon the public and the very fraud accomplished, to prevent which courts of equity interfere to protect the exclusive right of the original manufacturer. If one affix to goods of his own manufacture signs or marks which indicate that they are the manufacture of others, he is deceiving the public and attempting to pass upon them goods as possessing a quality and merit which another's skill has given to similar articles, and which his own manufacture does not possess in the estimation of purchasers. To put forth a statement, therefore, in the form of a circular or label attached to an article, that it is manufactured in a particular place, by a person whose manufacture there had acquired a great reputation, when, in fact, it is manufactured by a different person at a different place, is a fraud upon the public which no court of equity will countenance. This doctrine is illustrated and asserted in the case of Leather Cloth Co. (limited) v. American Leather Cloth Co. (limited,) which was elaborately considered by Lord Chancellor WESTBURY, and afterwards in the house of lords on appeal from his decree. 4 De G., J. & S. 137, and 11 Clark, H. L. Cas. 523. In that case an injunction was asked to restrain the defendant from using a trade-mark to designate leather cloth manufactured by it, which trade-mark the complainant claimed to own. The article known as leather cloth was an American invention, and was originally manufactured by J. R. & C. P. Crockett, at Newark, New Jersey. Agents of theirs sold the article in England as 'Crockett's Leather Cloth.' Afterwards a company was formed entitled 'The Crockett International Leather Cloth Company,' and the business previously carried on by the Crocketts was transferred to this company, which carried on business at Newark, in America, as a chartered company, and at West Ham, in England, as a partnership. In 1856 one Dodge took out a patent in England for tanning leather cloth and transferred it to this company. In 1857 the complainant company was incorporated, and the international company sold and assigned to it the business carried on at West Ham, together with the letters patent and full authority to use the trade-mark which had been previously used by it in England. A small part of the leather cloth manufactured by the complainant company was tanned or patented. It, however, used a label which represented that the articles stamped with it were the goods of the Crockett International Leather Cloth Company; that they were manufactured by J. R. & C. P. Crockett; that they were tanned leather cloth; that they were patented by a patent obtained in 1856, and were made either in the United States or at West Ham, in England. Each of these statements or representations was untrue so far as they applied to the goods made and sold by the complainant. The defendant having used on goods manufactured by it a mark having some resemblance to that used by the complainant, the latter brought suit to enjoin the use. Vice-Chancellor WOOD granted the injunction, but on appeal to the lord chancellor the decree was reversed and the bill dismissed. In giving his decision the lord chancellor said that the exclusive right to use a trade-mark with respect to a vendible commodity is rightly called property; that the jurisdiction of the court in the protection of trade-marks rests upon property; and that the court interferes by injunction because that is the only mode by which property of that description can be effectually protected. But he added: 'When the owner of the trade-mark applies for an injunction to restrain the defendant from injuring his property by making false representations to the public, it is essential that the plaintiff should not in his trade-mark, or in the business connected with it, be himself guilty of any false or misleading representation; for if the plaintiff makes any material false statement in connection with the property he seeks to protect, he loses, and very justly, his right to claim the assistance of a court of equity.' 'Where a symbol or label, claimed as a trade-mark, is so constructed or worded as to make or contain a distinct assertion which is false, I think no property can be claimed in it, or, in other words, the right to the exclusive use of it cannot be maintained.' When the case reached the house of lords the correctness of this doctrine was recognized by Lord CRANWORTH, who said that of the justice of the principle no one could doubt; that it is founded in honesty and good sense, and rests on authority as well as on principle, although the decision of the house was placed on another ground. The soundness of the doctrine declared by the lord chancellor has been recognized in numerous cases. Indeed, it is but an application of the common maxim that he who seeks equity must present himself in court with clean hands. If his case discloses fraud or deception or misrepresentation on his part, relief there will be denied. Long before the case cited was before the courts, this doctrine was applied when protection was sought in the use of trade-marks. In Pidding v. How, 8 Sim. 477, which was before Vice-Chancellor SHADWELL in 1837, it appeared that the complainant was engaged in selling a mixed tea, composed of different kinds of black tea, under the name of 'Howqua's Mixture,' in packages having on three of their sides a printed label with those words. The defendant having sold tea under the same name, and in packages with similar labels, the complainant applied for an injunction to restrain him from so doing. An ex parte injunction, granted in the first instance, was dissolved, it appearing that the complainant had made false statements to the public as to the teas of which his mixture was composed, and as to the mode in which they were procured. 'It is a clear rule,' said the vice-chancellor, 'laid down by courts of equity, not to extend their protection to persons whose case is not founded in truth.' In Perry v. Truefitt, 6 Beav. 66, which was before Lord LANGDALE, master of the rolls, in 1842, a similar ruling was had. There it appeared that one Leathart had invented a mixture for the hair, the secret and recipe for mixing which he had conveyed to the plaintiff, a hair-dresser and perfumer, who gave the composition the name of 'Medicated Mexican Balm,' and sold it as 'Perry's Medicated Mexican Balm.' The defendant, one Truefitt, a rival hair-dresser and perfumer, commenced selling a composition similar to that of plaintiff, in bottles with labels closely resembling those used by him. He designated his composition and sold it as 'Truefitt's Medicated Mexican Balm.' The plaintiff thereupon filed his bill, alleging that the name or designation of 'Medicated Mexican Balm' had become of great value to him as his trade-mark, and seeking to restrain the defendant from its use. It appeared, however, that the plaintiff, in his advertisements to the public, had falsely set forth that the composition was 'a highly-concentrated extract from vegetable balsamic productions' of Mexico, and was prepared from 'an original recipe of the learned J. F. Von Blumenbach, and was recently presented to the proprietor by a very near relation of that illustrious physiologist;' and the court, therefore, refused the injunction, the master of the rolls holding that, in the face of such a misrepresentation, the court would not interpose in the first instance, citing with approval the decision in the case of Pidding v. Howe. In a case in the superior court in the city of New York (Fetridge v. Wells, 4 Abb. Pr. 144) this subject was very elaborately and ably treated by Chief Justice DUER. The plaintiff there had purchased a recipe for making a certain cosmetic, which he sold under the name of 'The Balm of a Thousand Flowers.' The defendants commenced the manufacture and sale of a similar article, which they called 'The Balm of Ten Thousand Flowers.' The complainant, claiming the name used by him as a trade-mark, brought suit to enjoin the defendants in the alleged infringement upon his rights. A temporary injunction was granted, but afterwards, upon the coming in of the proofs, it was dissolved. It appeared that the main ingredients of the compound were oil, ashes, and alcohol, and not an extract or distillation from flowers. Instead of being a balm the compound was a soap. The court said it was evidence that the name was given to it and used to deceive the public, to attract and impose upon purchasers; that no representation could be more material than that of the ingredients of a compound recommended and sold as a medicine; that there was none so likely to induce confidence in its use, and none, when false, that would more probably be attended with injurious consequences. And, it is also said: 'Those who come into a court of equity, seeking equity, must come with pure hands and a pure conscience. If they claim relief against the frauds of others, they must themselves be free from the imputation. If the sales made by the plaintiff and his firm are effected, or sought to be, by misrepresentation and falsehood, they cannot be listened to when they complain that, by the fraudulent rivalry of others, their own fraudulent profits are diminished. An exclusive privilege for deceiving the public is assuredly not one that a court of equity can be required to aid or sanction. To do so would be to forfeit its name and character.' See, also, Seabury v. Grosvenor, 14 Blatchf. 262; Hobbs v. Francais, 19 How. Pr. 567; Connell v. Reed, 128 Mass. 477; Palmer v. Harris, 60 Pa. St. 156. The doctrine enunciated in all these cases is founded in honesty and good sense; it rebukes fraud and encourages fair dealing with the public. In conformity with it, this case has no standing before a court of equity. The decree of the court below dismissing the bill must therefore be affirmed; and it is so ordered.

108.US.418

An agreement in writing, between " W., superintendent of the Keets Mining Company, parties of the first part, and P., party of the second part," by which "the said parties of the first part" agree to deliver at P.'s mill ore from the Keets mine (owned by the company) to be crushed and milled by P.; and signed by "W., Supt. Keets Mining Co.," and by P.; is the contract of the company. An order sustaining a defendant's demurrer, and giving the plaintiff leave to amend, does not preclude the plaintiff from renewing, or the court from entertaining, the same question of law at the subsequent trial on an amended declaration.

It is unnecessary to consider whether, if this were to be treated as a contract under seal, it could be held to be upon its face the contract of the Keets Mining Company, and not of Whitney only, or whether the oral testimony would have been admissible to charge Post; because, by the Civil Code of Dakota, 'all distinctions between sealed and unsealed instruments are abolished,' and 'any instrument within the scope of his authority, by which an agent intends to bind his principal, does bind him, if such intent is plainly inferable from the instrument itself.' Civ. Code Dak. 1877, §§ 925, 1373. By the subject-matter of this contract, which is the delivery and milling of ore from the Keets mine; by the description of Whitney, both in the body of the contract and in the signature, as superintendent of the Keets Mining Company; and by the use of the words 'parties of the first part,' which are applicable to a company and not to a single individual,—the contract made by the hand of Whitney clearly appears upon its face to have been intended to bind, and therefore did bind, the company; and, upon proof that Post was a partner in the company, bound him. Whitney v. Wyman, 101 U. S. 392; Hitchcock v. Buchanan, 105 U. S. 416; Goodenough v. Thayer, 132 Mass. 152. The order sustaining Post's demurrer to the original complaint gave the plaintiff leave to amend, and did not preclude the plaintiff from renewing, nor the court from entertaining, the same question of law upon a fuller development of the facts at the trial on the amended complaint. Calder v. Haynes, 7 Allen, 387. Judgment affirmed.

108.US.541

.Y. John A. Campbell and Xr2. John ff7. Jewett for plaintiff in error. .Xh. James .JcCartney, Attorney-General of Illinois, -r. James - -dsall, and -Y. John B. HMawley for defendant in error.

This case, like that of Ruggles v. Illinois, just [ante, 832,] presents the question whether the state of Illinois has entered into a contract with a railroad corporation not to exercise the legislative power to regulate charges for the carriage of persons and property upon the railroad of the corporation. It is not necessary in this case, any more than it was in the other, to inquire whether the power of legislative regulation, in this particular, is one that can be bargained away, because here, as there, we are of opinion that no such thing was intended. The provision of the charter of the Illinois Central Railroad Company relied on, as showing a contract, is almost identical with that of the Central Military Tract Company considered in the Ruggles Case, and in the following words: 'Sec. 8. The said company shall have power to make, ordain, and establish all such by-laws, rules, and regulations as may be deemed expedient and necessary to fulfill the purposes and carry into effect the provisions of this act, and for the well-ordering, regulating, and securing the affairs, business, and interests of the company: provided, that the same be not repugnant to the constitution and laws of the United States or of this state, or repugnant to this act. The board of directors shall have power to establish such rates of toll for the conveyance of persons and property upon the same as they shall from time to time by their by-laws direct and determine, and to levy and collect the same for the use of said company. The transportation of persons and property, the width of track, the construction of wheels, the form and size of cars, the weight of loads, and all other matters and things respecting the use of said road and the conveyance of passengers and property, shall be in conformity to such rules and regulations as said board of directors shall from time to time determine. Nothing in this act contained shall authorize said corporation to make a location of their track within any city without the consent of common council of said city.' What was said in the other case as to the construction of section 6 of that charter is applicable to this, and, referring to the opinion in that case for the reasons, we affirm this judgment. BLATCHFORD, J., took no part in the decision of this case.

109.US.440

1. Section 2324 Rev. St. enacts that where certain mining claims referred to in the section are held in comrmon, the expenditure upon them required by the act may be made upon any one claim : Held, that the act contemplates that this expenditure is to be made for the common benefit, and that one enjoying a mining right defined by metes and b~ounds does not, by expending money upon a flume which passes over adjoining land-and deposits the waste from his mine on that land without benefit to such adjoining land, and witlhout other evidence of a claim to it, thereby make an expenditure upon it within the meaning of the Revised Statutes. 2. In a suit under section 2326 of the Revised Statutes to determine adverse claims to lands containing valuable mineral deposits, if neither party shows a compliance with the requirements of law in regard to work done upon the claim, the finding should be against both.

Previous to the legislation of congress in 1866, mining claims upon the public lands of the United States were held under rules framed by miners themselves in different localities. These rules prescribed the extent of ground which miners could severally appropriate for mining, and the conditions upon which such ground could be acquired and held. They bore a general similarity in different districts, varying only according to the extent and character of the mines. They all agreed in one particular,—in recognizing discovery and appropriation as the source of title, and development by working as the condition of continued possession. The first discoverer could derive no benefit from his discovery unless he followed it up by work for the development of his claim; and what that work should be, the nature and extent of it, how soon it should commence after the discovery, and when its suspension should be deemed an abandonment of the claim, were specifically declared. The act of congress of 1866 gave the sanction of law to these rules of miners, so far as they were not in conflict with the laws of the United States. 14 St. c. 262, § 1. Subsequent legislation specified with greater particularity the modes of location and appropriation and extent of each mining claim, recognizing, however, the essential features of the rules framed by miners, and, among others, that which required work on the claim for its development as a condition of its continued ownership. The act of 1872—and its provisions are re-enacted in the Revised Statutes—declares that on each claim subsequently located, until a patent for it is issued, there shall be annually expended for labor or improvements $100, and on claims previously located, an annual expenditure of $10 for each 100 feet in length along the vein; and provides that when such claims are held in common, the expenditure may be upon any one of them. And it declares that upon a failure to comply with these conditions the claim shall be opened for relocation in the same manner as if no location of the same had ever been made, provided the original locators, their assigns or representatives have not resumed work upon it after failure and before relocation. 17 St. c. 152, § 5. The act also points out various steps which must be followed by a party who seeks to obtain a patent for his mining claim. Among other things he must file an application in the proper land-office, under oath, showing a compliance with the law, together with a plat and the field-notes of his claim or claims made under the direction of the surveyor general of the United States, showing its or their boundaries. He must also at the time, or within 60 days thereafter, file with the register a certificate of the surveyor general that $500 worth of labor has been expended or improvements to that amount have been made upon the claim by himself or grantors. If within 60 days thereafter an adverse claim is filed, accompanied by the oath of the party making it, showing its nature, boundaries, and extent, proceedings are to be stayed until the controversy has been settled by the decision of a court of competent jurisdiction, or the adverse claim is waived. And it is made the duty of the adverse claimant, within 30 days afterwards, to commence legal proceedings to determine the question of the right of possession. In this case it appears that the defendants claimed the premises in controversy as their mining ground, and made application for a patent. The premises are situated on Blue river, in the county of Summit, in the state of Colorado, and embrace 23.48 acres. The plaintiff asserted an adverse right to them as part of what is called in the record 'The Thomas Klak Claim,' and brought the present action to determine his right of possession. In his complaint he alleges that on the ninth of August, 1876, he was the owner of the Klak claim, and ever since has been such owner, and entitled to its possession; that he worked the same as a placer mining claim in connection with other claims adjacent and contiguous to it; that the defendants sometime in 1880 entered upon a part of said claim—that portion now in controversy—and have ever since wrongfully withheld its possesion from him. He avers that the premises are worth $50,000; that the action is brought in support of his adverse claim; and he asks judgment for possession of the premises. The defendants, besides denying the allegations of the plaintiff, set up a a right to a portion of the premises by location and occupation under the mining rules of the district, and to the remainder by purchase from the original locators. On the trial the plaintiff produced and gave in evidence a certificate of location of the Klak claim made by his grantors in 1869, and also showed that they were owners of claims in what is called Lomax Gulch, adjoining and contiguous to the Klak claim, and began to work such adjoining claims in 1872, and continued the work until and during 1880; that in prosecuting the work they used a flume which extended over the premises in controversy a distance of 150 feet, by means of which the tailings from the Lomax gulch that is, the waste material—were carried and deposited on the premises, so that at the end they covered a greater portion of them—more than one-third thereof. From them the plaintiff traced his title. With the exception of the extension of the flume over the premises, and their use as a place of deposit for the waste material from the adjoining claims, it was not shown that either he or his grantors ever did any work upon them, or ever had possession of them. He insisted, however, that this extension of the flume and use of the premises were sufficient to give him the right of possession under that clause of the statute which provides that where several mining claims are held in common the labor or expenditure required may be made on any one of them. The court below held, and so instructed the jury, that these facts were insufficient to establish any possession or right of possession in him, and that, therefore, he was not entitled to a verdict. The defendants proved the location in July, 1880, of a portion of the premises in controversy, then vacant and unoccupied, and a purchase of the remainder from previous locators; but they gave no evidence that any work on the claim was done by themselves or their grantors; and the court held that they had not established a title for the consideration of the jury, who were directed so to find. The jury brought in a verdict that neither party had proven title to the property. The effect of this verdict was to leave the defendants, who had applied for a patent, without any right to it, so far as the premises in controversy were concerned, and to leave the plaintiff in no better situation. The contention of the plaintiff was made upon a singular misapprehension of the meaning of the act of congress, where work or expenditure on one of several claims held in common is allowed, in place of the required expenditure on the claims separately. In such case the work or expenditure must be for the purpose of developing all the claims. It does not mean that all the expenditure upon one claim—which has no reference to the development of the others—will answer. As was said in Smelting Co. v. Kent: 'Labor and improvements, within the meaning of the statute, are deemed to have been had on a mining claim, whether it consists of one location or several, when the labor is performed or the improvements are made for its development, that is, to facilitate the extraction of the metals it may contain,—though in fact such labor and improvements may be on ground which originally constituted only one of the locations, as in sinking a shaft, or be at a distance from the claim itself, as where the labor is performed for the turning of a stream or the introduction of water, or where the improvement consists of the construction of a flume to carry off the debris or waste material.' 104 U. S. 655. It often happens that for the development of a mine upon which several claims have been located, expenditures are required exceeding the value of a single claim, and yet without such expenditures the claim could not be successfully worked. In such cases it has always been the practice for the owners of different locations to combine, and to work them as one general claim; and expenditures which may be necessary for the development of all the claims may then be made on one of them. The law does not apply to cases where several claims are held in common, and all the expenditures made are for the development of one of them, without reference to the development of the others. In other words, the law permits a general system to be adopted for adjoining claims held in common, and in such case the expenditures required may be made or the labor be performed upon any one of them. The language as to the construction of a flume to carry off the debris or waste material, at the conclusion of the citation above, has reference to such a structure as may be used to carry off the common debris of several claims, not to a flume used merely to remove the debris of one claim. Here no work was done for the general improvement of all the claims. The deposit of the debris from the Lomax gulch on the premises in controversy, so far from tending to develop them, imposed obstacles in the way of their development, by covering them up with refuse matter. There having been no work done by either claimant, plaintiff or defendants, on the premises in controversy, the court properly instructed the jury to find against both. Judgment affirmed.

107.US.348

A. conveyed, March 5, 1859, to a county in Nebraska certain lands for a "poorfarm," and they were thereafter used as such. The county, pursuant to its agreement, made one cash payment, and for the remainder of the stipulated consideration gave its notes secured by mortgage, and payable respectively in one, two, three, and four years. A. assigned the notes to B. Some time thereafter, the Supreme Court of the State decided that, by the purchase of lands for such a purpose, a county could not be bound to pay at any specified time the purchase-money, or to secure it by mortgage upon them, but was limited to a payment in cash and to the levy of an annual tax to create a fund wherewith to pay the residue. A. and B., the notes remaining unpaid, filed, Sept. 10, 1877, a billp raying for a reconveyance and an accounting, or, should the county elect to retain the lands, then for a decree for the value of them. Held, 1. That in view of that decision, the contract being unauthorized only so far as it relates to the time and mode of paying the purchasemoney, and the title to the lands having passed by the conveyance, the county holds that title as a trustee for the benefit of B., and that he is entitled to the relief prayed for. 2. That unless the sum due on account of the purchasemoney, after a proper allowance shall be made as a compensation for a failure of A.'s title to a small part of the lands, be paid within a reasonable time, to be fixed by the court below, having reference to the necessity of raising the same by taxation, as prescribed and limited by the statute, the county be required to execute and deliver a deed, releasing to A. all the title acquired under his deed, and that he convey the same to B. 3. That the suit is not barred by the Statute of Limitations.

The statute of Nebraska, in force at the date of the transaction in question, conferring power on the county commissioners over the subject, (Rev. St. Neb. c. 40,) provided, section 17, 'that the county commissioners in each county are authorized, whenever they see fit to do so, to establish a poor-house;' and in the next section, that 'they may take to the county, by grant, devise, or purchase, any tract of land, not exceeding 640 acres, for the purpose of said poor-house.' Section 19 of the same chapter declares that 'said commissioners are hereby empowered to receive donations to aid in the establishment of such poor-house; and also empowered, from time to time, as they shall see fit, to levy and collect a tax, not exceeding 1 per cent., on the taxable property in the county, and to appropriate the same to the purchase of land not exceeding the aforesaid 640 acres; and to erect and furnish buildings suitable for a poor-house, and to put into operation and to defray the actual expenses of said poor-house, should the labor of the inmates be inadequate thereto. By section 23 of the same act, the commissioners are authorized, if they deem it to be for the interest of the county, to appropriate out of any other money belonging to the county any sum not exceeding $2,500, for the purpose of purchasing a farm and erecting thereon suitable buildings, as contemplated in the sections before referred to. These provisions of the statute were construed by the supreme court of Nebraska in the case of Stewart v. Otoe Co. 2 Neb. 177. It does not appear from the report when this decision was made, but as the case arose upon a contract dated in January, 1870, it must, of course, have been long after the making of the contract which is the foundation of the present litigation. The decision of the supreme court of Nebraska referred to was rendered in an action brought upon a contract, similar in its character to the one between Chapman and Douglas county, to recover against Otoe county damages for its refusal to accept a deed and execute the note and mortgage contemplated. A judgment against the plaintiff sustaining a general demurrer to the petition was affirmed, on the ground that the contract was illegal and void. The court said: 'There is no authority of law for the county commissioners to bind the county in the manner contemplated. They cannot give a promissory note, nor can they mortgage the property of the county. Should they formally do so, their action would be a nullity. In the purchase of land for a poor-farm, the authority of the commissioners of a county is very clearly set forth. The mode of raising the money, and paying it over, are all definitely stated. These statutes set a limit, beyond which they cannot go. They are a guide, not only to the commissioners, but equally so to all persons dealing with them, who must see to it that their contracts are within the boundaries thus described. * * * Here we find the authority, and indeed the only authority, for the purchase and payment of money for a 'poor-farm' by the county commissioners; and here, too, is specially designated the money that may be used for that purpose, together with the mode of raising it. But there is not one word about mortgaging the property of the county to secure the payment of the purchase money at a given time. The statutes provide the only security that can be given. The public faith is pledged; and a tax, not exceeding 1 per cent., may be levied upon all the taxable property of the county annually, and, when collected, paid to the person entitled thereto by an order upon the treasurer of the county, payable out of that special fund.' The doctrine of this decision has been accepted by all parties to this suit, and we are not asked to consider any question as to its correctness, or as to our obligation to adopt it. We, therefore, assume it to be the law of Nebraska, applicable to the case, and the basis of further inquiry as to the relative rights of the parties to this litigation. It is expressly declared by the supreme court of Nebraska, in this case, that it is clear that the county commissioners had power to purchase a poor-farm. The point of the decision is that this power does not extend to an agreement to pay as a definite time, or to give as security for payment a lien upon the land. The vendor must either receive the purchase money on delivery of the deed, or wait for its payment in the due course of administration, by the appropriation of the taxes levied, collected, and paid into the treasury applicable to that purpose. If, in the present case, such had been the original understanding between the parties, and the deed had been delivered without payment, but upon orders drawn upon the county treasurer payable according to law, the vendor woudl have been obliged to wait during the reasonable delays of administration. 'Whoever,' said the supreme court of Nebraska, in Brewer v. Otoe Co. 1 Neb. 373, 'deals with a county and takes in payment of his demand a warrant of the character of these, no time of payment being fixed, does so under an implied agreement that if there be no funds in the treasury out of which it can be satisfied, he will wait until the money can be raised in the ordinary mode of collecting such revenues. He is presumed to act with reference to the actual condition, and the laws regulating and controlling the business of the country. He cannot be permitted, immediately upon the receipt of such warrant, to resort to the courts to enforce payment by judgment and execution, without regard to the condition of the treasury at the time, or the laws by which the revenues are raised and disbursed.' Accordingly, in that case it was decided that the statute of limitations did not apply to cases of such claims against counties. The court, on that point, said: 'But these warrants do not, nor was it the intention of the legislature that they should, fall within the operation of this act. * * * Nor can any action be brought on such warrant until the fund is raised, or at least sufficient time has elapsed to enable the county to levy and collect it in the mode prescribed in the revenue laws. That the legislature never intended that county warrants should be affected by the limitation act before referred to, is evident, I think, from the whole course of legislation respecting them. As late as the twelfth of February, 1866, it was enacted that 'all debts heretofore incurred by the county commissioners of any county, acting in good faith, and duly recorded at the time on their books, shall be deemed valid and the county shall be held liable for the same.' Chapter 5, § 1, Rev. St. * * * From these, as well as numerous other enactments of the legislature that might be cited, I have reached the conclusion that the plea of the statute of limitations cannot be successfully made against these warrants, and that whenever it can be shown that the funds have been collected out of which they can be paid, or sufficient time has been given to do so in the mode pointed out in the statute, their payment may be demanded, and, if refused, legally coerced.' And if, in such cases, a proceeding in mandamus should be considered to be the more appropriate, and, perhaps, the only effective, remedy, it also is not embraced in the statute of limitations prescribed generally for civil actions. The writ may well be refused when the relator has slept upon his rights for an unreasonable time, and especially if the delay has been prejudicial to the defendant, or to the rights of other persons, though what laches, in the assertion of a clear legal right, would be sufficient to justify a refusal of a remedy by mandamus must depend, in a great measure, on the character and circumstances of the particular case. Chinn v. Trustees, 32 Ohio St. 236; Moses, Mandamus, 190. There is no statute of limitations in Nebraska applicable to that proceeding. In the present case, however, it was not the understanding of the parties that the vendor should await the collection of taxes, as prescribed by the statute, for the payment of the purchase money, but, on the contrary, there was an agreement for payment in a definite time, without regard to the condition of the county treasury, and for security by way of notes and mortgages. The agreements, as we have assumed, so far as it relates to the time and mode of payment, is void; but the contract for the saie itself has been executed on the part of the vendor by the delivery of the deed, and his title at law has actually passed to the county. As the agreement between the parties has failed by reason of the legal disability of the county to perform its part, according to its conditions, the right of the vendor to rescind the contract and to a restitution of his title would seem to be as clear as it would be just, unless some valid reason to the contrary can be shown. As was said by this court in Marsh v. Fulton Co. 10 Wall. 676, 684, and repeated in Louisiana v. Wood, 102 U. S. 294, 299, 'the obligation to do justice rests upon all persons, natural and artificial, and if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation.' And see, also, Miltenberger v. Cooke, 18 Wall. 421. The illegality in the contract related, not to its substance, but only to a specific mode of performance, and does not bring it within that class mentioned by Mr. Justice BRADLEY in Thomas v. Richmond, 12 Wall. 349, 356. The purchase itself, as we have seen, was expressly authorized. The agreement for definite times of payment and for security alone was not authorized. It was not illegal in the sense of being prohibited as an offense; the power in that form was simply withheld. The policy of the law extends no further than merely to defeat what it does not permit, and imposes upon the parties no penalty. It thus falls within the rule, as stated by Mr. Pollock, in his Principles of Contract, 264: 'When no penalty is imposed, and the intention of the legislature appears to be simply that the agreement is not to be enforced, then neither the agreement itself nor the performance of it is to be treated as unlawful for any other purpose.' Johnson v. Meeker, 1 Wis. 436. The principle was applied in the case of Morville v. American Tract Society, 123 Mass. 129, 137, where it was said: 'The money of the plaintiff was taken and is still held by the defendant under an agreement which, it is contended, it had no power to make, and which, if it had power to make, it has wholly failed on its part to perform. It was money of the plaintiff, now in possession of the defendant, which in equity and good conscience it ought now to pay over, and which may be recovered back in an action for money had and received. The illegality is not that which arises where the contract is in violation of public policy or of sound morals, and under which the law will give no aid to either party. The plaintiff himself is chargeable with no illegal act, and the corporation is the only one at fault in exceeding its corporate powers by making the express contract. The plaintiff is not seeking to enforce that contract, but only to recover his own money and prevent the defendant from unjustly retaining the benefit of its own illegal act. He is doing nothing which must be regarded as a necessary affirmance of an illegal act.' The decision of this court in Hitchcock v. Galveston, 96 U. S. 341, 351, covers the very point. There a recovery was allowed for the value of the benefit conferred upon the municipal corporation, notwithstanding, and, indeed, for the reason, that the contract to pay in bonds was held to be illegal and void. 'It matters not,' said the court, 'that the promise was to pay in a manner not authorized by law. If payments cannot be made in bonds, because their issue is ultra vires, it would be sanctioning rank injustice to hold that payment need not be made at all. Such is not the law.' This doctrine was full recognized by the supreme court of Nebraska as the law of that state in the case of Clark v. Saline Co. 9 Neb. 516, in which it adopts, from the decision of the supreme court of California in Pimental v. City of San Francisco, 21 Cal. 362, the following language: 'The city is not exempted from the common obligation to do justice which binds individuals. Such obligations rest upon all persons, whether natural or artificial. If the city obtains the money of another by mistake or without authority of law, it is her duty to refund it, from this general obligation. It she obtain other property which does not belong to her, it is her duty to restore it, or, if used, to render an equivalent therefor, from the like obligation. Argenti v. San Francisco, 16 Cal. 282. The legal liability springs from the moral duty to make restitution.' The conveyance by Chapman to the county of Douglas passed the legal title, but upon a condition in the contract which it was impossible in law for the county to perform. There resulted, therefore, to the grantor the right to rescind the agreement upon which the deed was made, and thus to convert the county into a trustee, by construction of law, of the title for his benefit, according to the often-repeated rule, as stated by Hill, Trustees, 144, that 'whenever the circumstances of a transaction are such that the person who takes the legal estate in property cannot also enjoy the beneficial interest, without necessarily violating some established principle of equity, the court will immediately raise a constructive trust, and fasten it upon the conscience of the legal owner, so as to convert him into a trustee for the parties who, in equity, are entitled to the beneficial enjoyment.' Upon this principle the vendor of real estate is treated as trustee of the title for the purchaser; and the mortgagee, having the legal title, after payment of the mortgage debt, is a trustee for the mortgagor. The analogy is complete between these, and every case, of which the present is one, where the holder of the legal title is under a duty to convey to another. But, admitting that Chapman was entitled to call for a reconveyance, it is alleged that the statute of limitations of Nebraska, which bars the right to recover the title to real estate in 10 years from the time it first accrued, defeats the recovery. The statute of limitations in force March 5, 1859, which was the date of the deed, prescribed 21 years, after the cause of action shall have accrued, as the period within which an action for the recovery of the title to lands must be brought. Rev. St. Neb. 1866, p. 395, § 6. On February 12, 1869, the legislature of Nebraska passed an act, which took effect July 1, 1869, which amended this section so as to reduce the limitation to 10 years. It is not denied that if Chapman's cause of action first accrued to him on March 5, 1859, this amendment could not operate upon it, because to give it that effect would be to take away an existing right of action by mere legislation, as the 10 years would then have fully expired. It is, therefore, claimed that his right of action for a reconveyance of the title could only have first accrued when the first installment of the purchase money became due,—that is, on March 5, 1860,—which left eight months after the statute took effect before the 10-years' limitation would expire, which, it is claimed, would be a reasonable time within which to require that suits upon existing causes of action should be brought. But this view cannot be supported; for the original contract for payment, at a fixed time, is rendered invalid, for the same reason that avoided the notes and mortgage, the objection being, according to the decision of the supreme court of Nebraska, that the county had no power to bind itself to pay in any other manner than that prescribed by the statute. Hence, it must be held, in this aspect of the case, that the right of action was not postponed, after the date of the deed, by the credit given, and if it accrued at that time the limitation was 21 years, according to the statute then in force, within which the present suit was in fact brought. But the more satisfactory answer to this defense is that none of the statutes of limitation referred to apply to the case at all. We have already seen that by the decision in the case of Brewer v. Otoe Co. 1 Neb. 373, it is the declared law of Nebraska that the claim against the county for the purchase money, on the supposition that the understanding had been to accept payment according to the terms of the statute, was not liable to the bar of the limitation acts. So that the obligation of the county to pay would not be extinguished by the statutory lapse of time. Now, although the right of Chapman to rescind the contract and demand a reconveyance accrued at the very date of the deed, he was not bound to exercise the right, and his cause of action did not accrue until he had made manifest his election. He had the right to treat as null that part of the contract which was illegal, and, having executed it on his part, to waive performance according to its terms, on the part of the county, and wait a reasonable length of time for the county to make the payment in the mode made lawful by the statute, before exerting his power to rescind the contract. Until that time had elapsed, and until, after that, Chapman had elected to rescind, there was no existing cause of action, and consequently nothing upon which the statute of limitations could begin to take effect. When that reasonable time expired we have no means of determining. It would depend upon circumstances not disclosed in the record, such as the state of the county treasury, the extent of its other obligations, the value of the taxable property, and its general financial condition. There is nothing whatever to show that the delay that has taken place in filing the present bill has been unreasonable. It is impossible, therefore, to say that any statute of limitations has even begun to run against the cause of action, much less that its bar has become complete. There is nothing, therefore, to prevent the relief prayed for being granted, if it can be done without injustice to the defendant. On this point, it is said, it would be inequitable to decree a rescission of the contract and a restoration of the title to and possession of the property, because the parties cannot be placed In statu quo; that the circumstances have greatly changed by the increase in the value of the property and the expensive improvements that have been put upon it by the county. If the relief asked and expected was an unconditional reconveyance of the title and surrender of possession, this would undoubtedly be true. But such is not the case. Any such injurious and inequitable results as are deprecated may easily be averted by the simple payment of the amount due on account of the purchase money, which the appellants consent to receive, which is within the statutory powers of the county, and for which proper provisions may be made in the decree. The principles on which we proceed to establish the right of the appellants to the relief prayed for were announced and acted upon by this court in the case of City of Parkersburg v. Brown, 1 SUP. CT. REP. 442, in which it was also held that the equity of the original grantor of the property sought to be reclaimed, passed by an assignment of the void securities. This settles the relative rights of Chapman and his co-complainants, the representatives of Ely, and entitles the latter, in the name of the former, to the relief prayed for in the bill. And conversely, the right of the county, represented by its taxpayers, to require a rescission of such a contract, on condition of a surrender of the void securities on the part of the vendor, and a reconveyance of the title in consideration of which they were issued, was recognized by this court in the case of Champton v. Zabriskie, 101 U.S. 601. In not granting this relief the circuit court erred, and its decree must be reversed, with directions to ascertain the amount due from the county of Douglas on account of the purchase money of the poorfarm, making any proper allowance as a compensation for the failure of the title to the 10-acre tract, and thereupon to render a decree, unless the amount so found due be paid within a reasonable time, to be fixed by the court, having reference to the necessity of raising the same by taxation, as regulated by the statute; that the county of Douglas be required by its commissioners to execute and deliver a deed, releasing to Chapman all the title acquired by it by virtue of the deed from him of March 5, 1859, to be conveyed by Chapman to William A. Ely, his co-complainant, and sole representative of Charles A. Ely, upon such terms as the equities of the case may require. It is accordingly so ordered.

109.US.357

A husband and wife join in a mortgage of the wife's real estate to secure a debt of the husband contracted simultaneously with the execution of the mortgage. The wife dies before maturity of the debt, leaving a will devising all her estate to her husband iV trust to enjoy the income during his life, with remainder to her children at his decease :-But provided, That said Cyrenius Beers may encumber the same by way of mortgage or trust deed or otherwise, and renew the same for the purpose of raising money to pay off any and all encumbrances now on said property, and which trust deed or mortgage so made shall be as valid as though be held an absolute estate in said property. The will appointed the husband as sole executor, and waived all security: Held, that the executor was empowered by the will to extend the mortgage debt at maturity without notice to the devisees of the remainder, and without affecting the mortgage security. The husband, on the maturity of the debt secured by the mortgage, extended it by an instrument which did not refer to the will, or to the power which it ,conferred : Held, that, under the circumstances, it was to be construed as an execution of the power.

This appeal brings into review a decree for the foreclosure of a mortgage of real estate and a sale of the mortgaged premises, and dismissing a cross-bill filed by the appellants praying that the mortgage might be declared not to be a lien on the premises and delivered up to be canceled. The mortgage in question was dated February 24, 1869, and was made by Cyrenius Beers and Mary Beers, his wife, to secure payment of a debt due from the husband to the mortgagee, according to the terms of his bond, conditioned for the payment thereof on February 24, 1874, with interest at the rate of 8 per cent. per annum, payable semi-annually. The title to the real estate mortgaged is recited in the mortgage to be in the wife. Mary Beers died, leaving a will, which was duly admitted to probate in March, 1872. It is as follows:- This extension of the time of payment of the mortgage debt was made without any consent thereto on the part of the appellants. It is claimed on their behalf that, as owners of the estate mortgaged by the testatrix to secure the debt of her husband, they are in the position of sureties, and that the extension of time for the payment of the debt, without authority from them, is, in equity, a discharge of the lien of the mortgage. The appellee insists, in reply to this claim, that the agreement by which further time was given for the payment of the debt, during which the mortgage was continued in force, was authorized by the will of Mary Beers and binds her devisees. Whether this be so is the precise question we are required to decide. We are reminded, at the outset of the argument, by the counsel for the appellants, that, being sureties, they are favorites of the law; that their contract is strictissimi juris; and that nothing is to be taken against them by intendment or construction. It is quite true that 'the extent of the liability to be incurred must be expressed by the surety, or necessarily comprised in the terms used in the obligation or contract;' that is, 'the obligation is not to be extended to any other subject, to any other person, or to any other period of time than is expressed or necessarily included in it.' 'In this sense only,' continues Mr. Burge, Law Surety, (1st Amer. Ed.) 40, 'must be understood the expression that the contract of the surety is to be construed strictly. It is subject to the same rules of construction and interpretation as every other contract.' Besides, the rule of construction applies only to the contract itself, and not to matters collateral and incidental, or which arise in execution of it, which are to be governed by the same rules that apply in like circumstances, whatever the relation of the parties. So that the fact that the appellants occupy the relation of sureties cannot control the determination of the question whether the agreement extending the time of payment of the mortgage, debt, and the continuance of the mortgage as an incumbrance upon the estate, was a valid execution of the powers conferred by the will of the testatrix. That question must be answered according to its own rules. It is further said, however, on the part of the appellants, that the agreement of February 24, 1874, cannot be sustained in support of a continuation of the mortgage lien, as an execution of the powers conferred by the will of Mary Beers, because it does not appear that it was so intended by Cyrenius Beers, the donee of those powers. It is argued that the agreement of extension makes no reference either to the power or to the property of the testatrix, which is the subject of the power; that every provision contained in it can have its full operation and effect; that is, all that it professes to do or provide for can be done, according to its full tenor, without referring the act to the power, and by referring it solely to the individual interest of Cyrenius Beers, as the debtor of the appellee. This, however, on an examination of its terms, will appear to be an erroneous view of the true meaning and legal effect of the agreement of extension. It recites the indebtedness of Cyrenius Beers to the appellee as then due and unpaid; that he had applied to them to extend the time for the payment of the principal sum; that Cyrenius Beers and Mary, his wife, had executed and delivered their deed of mortgage to secure the payment thereof. It is thereupon witnessed that the Connecticut Mutual Life Insurance Company doth thereby extend and postpone the time of payment of the principal sum until February 24, 1879, interest to be paid thereon at the rate of 9 per centum per annum; and in consideration thereof Cyrenius Beers agrees to pay the principal sum on the day named therefor, and the interest thereon as stipulated; it being understood that, upon a failure to pay any installment of interest, the whole of the principal sum shall thereupon become due, and may be collected without notice, together with all arrearages of interest. It is also understood and agreed between the parties that nothing in the agreement shall operate to discharge or release Cyrenius Beers from his liability upon the bond originally given for the payment of the debt, 'but it is expressly understood that this instrument is to be taken as collateral and additional security for the payment of said bond.' It is also expressly understood and agreed between the parties that in the event of failure on the part of Cyrenius Beers 'to fulfill, keep, and promptly perform, as well in spirit as in letter, the covenants in said mortgage contained, given by said Cyrenius Beers to said company, then, at the election of the said company, 'the whole of said principal sum in the condition of said bond mentioned shall thereupon at once become due and payable, and may be collected without notice, together with all accrued interest thereon at said rate of nine per centum per annum, anything herein before contained to the contrary not withstanding.' Taking the instrument in all its parts, and looking at its* entire scope and purpose, it must be admitted that, notwithstanding its omission of any direct and express stipulation of that character, its meaning and legal effect are to continue in force, so far as the parties to it had lawful authority to do so, the covenants and lien of the mortgage as security for the payment of the original debt, with the interest reserved at the increased rate until the expiration of the extended time of payment. This effect was undoubtedly intended by the parties, and this intention could not take effect except by virtue of the powers contained in the will of Mary Beers. Cyrenius Beers, as debtor, had no power to continue the mortgage in force, nor as tenant for life to renew it as a mortgage in fee. This is a demonstration, therefore, that the instrument must be treated as an execution of those powers, because, if it cannot otherwise operate according to the intention of the parties, it must be referred to the power which alone can make it effectual in all its provisions. The rule applicable in such cases, it is claimed, is that deduced as the doctrine of Sir Edward Clere's Case, 6 Roport 17b, as stated by 1 Sugd. Powers, (7th London Ed.) 417, that 'where the disposition, however general it may be, will be absolutely void if it do not inure as an execution of the power, effect will be given to it by that construction.' Mr. Chance, however, says: 'There are, indeed, in the case dicta apparently to this effect: that if the instrument refer not to the power, and can have some effect by means of the interest of the party, though not all the effect which the words seem to import, still the instrument shall not operate as an execution of the power, the intention being thus contravened. It appears quite clear, however, at this day, and a reference to the authorities will, it is apprehended, show that it has been considered clear for nearly two centuries, that the rule is not thus confined indeed, it may well be asked why, admitting that the intention can be discovered to pass all, the intention should not prevail in the one case as well as in the other? What rule of law or construction would be thereby violated?' 2 Chance, Powers, (London Ed. 1883) § 1597, p. 72. 'And notwithstanding Sir Edward Clere's Case, an intent, apparent upon the face of the instrument, to dispose of all the estate, would be deemed a sufficient reference to the power to make the instrument operate as an execution of it, inasmuch as the words of the instrument could not otherwise be satisfied.' 2 Sugd. Powers, (7th London Ed.) c. 6, § 8, p. 412. In the present case, as we have seen, the legal effect and meaning of the instrument cannot be satisfied without treating it as an execution of the powers under the will, for Cyrenius Beers, merely as debtor, as mortgagor, and as owner of the life estate under the will of his wife, could not lawfully agree to keep in force and renew a mortgage upon the estate of which the appellants were devisees in remainder in fee. The supreme court of Illinois in the case of Funk v. Eggleston, 92 Ill. 515, had the question under consideration, and in a learned opinion, in which a large number of authorities, both English and American, is reviewed, discarded even the modified English rule of later date, and adopted that formulated by Mr. Justice STORY in Blagge v. Miles, 1 Story, 427, as follows: 'The main point is to arrive at the intention and object of the donee of the power in the instrument of execution, and, that being once ascertained, effect is given to it accordingly. If the donee of the power intends to execute, and the mode be in other respects unexceptionable, that intention, however manifested, whether directly or indirectly, positively or by just implication, will make the execution valid and operative. I agree that the intention to execute the power must be apparent and clear, so that the transaction is not fairly susceptible of any other interpretation. If it be doubtful, under all the circumstances, then that doubt will prevent it from being deemed an execution of the power. All the authorities agree that it is not necessary that the intention to execute the power should appear by express terms or recitals in the instrument. It is sufficient that it should appear by words, acts, or deeds demonstrating the intention.' The rule as adopted by this court was tersely stated by Mr. Justice STRONG in delivering its opinion in Blake v. Hawkins, 98 U. S. 315, 326, in this form: 'If the will contains no expressed intent to exert the power, yet if it may reasonably be gathered from the gifts and directions made that their purpose and object were to execute it, the will must be regarded as an execution. After all, an appointment under a power is an intent to appoint carried out, and if made by will the intent and its execution are to be sought for through the whole instrument.' In the case of Munson v. Berdan, 35 N. J. Eq. 376, it is said: 'It is sufficient if the act shows that the donee had in view the subject of the power.' And in White v. Hicks, 33 N. Y. 383, 392, DENIO, C. J., said: 'This doctrine proceeds upon the argument that by doing a thing which, independently of the power, would be nugatory, she (the donee of the power) conclusively evinced her intention to execute the power.' And in Sewall v. Wilmer, 132 Mass. 131, 134, the supreme judicial court of Massachusetts, in reference to a will made in Maryland, which was the domicile of the testatrix, but the provisions of which related to both real and personal estate situated in Massachusetts, held it to be a valid execution of a power contained in the will of her father, whose domicile was in that state, although it would have been otherwise held in Maryland. GRAY, C. J., said: 'But in this commonwealth the decisions in England since our revolution, and before the St. of 7 Wm. IV. and 1 Vict. c. 26, § 27, have not been followed; the court has leaned towards the adoption of the rule enacted by that statute as to wills thereafter made in England, namely, that a general devise or bequest should be construed to include any real or personal estate of which the testator has a general power of appointment, unless a contrary intention should appear by his will; and it has been adjudged that the mere facts that the will relied on as an execution of the power does not refer to the power, nor designate the property subject to it, and that the donee of the power has other property of his own upon which his will may operate, are not conclusive against the validity of the execution of the power; but that the question is in every case a question of the intention of the donee of the power, taking into consideration not only the terms of his will, but the circumstances surrounding him at the time of its execution, such as the source of the power, the terms of the instrument creating it, and the extent of his present or past interest in the property subject to it.' We cannot doubt that Cyrenius Beers, in the agreement of February 24, 1874, intended to exert whatever power had been conferred upon him by the will of his wife to continue in force the mortgage to the appellee as an incumbrance upon her estate, for the reason that it is upon that supposition alone that it can have its due legal effect, ut res magis valeat quam pereat; and, by force of the rules which we have seen ought to govern in such cases, we hold that if the agreement as made is within the scope of the power, it must be regarded as a valid execution of it. The question next to be considered, therefore, is whether Cyrenius Beers was empowered by the will of his wife to consent to an extension of the time of payment of the mortgage debt, and a continuance thereby of the lien on the mortgaged estate. It is to be observed, in the first place, that he is made executor of the will, tenant for life for his own use of all the property of the testatrix, and trustee of the legal title. Whether his title as trustee is to be considered as a fee-simple or for life, or a chattel interest only, it is not necessary to decide. Its duration is to be measured by the nature of the purposes for which it was created, and they include the power to mortgage, to sell, and to reinvest in his own name as trustee. And it is not without significance, although of how much importance is not material, that the remainder in fee limited to the children of the testatrix, and which is described as a limitation of all the estate of which the testatrix should die seized or possessed, is subsequently referred to as what shall remain after the death of the tenant for life, and after the exercise by him of the power of mortgaging or selling and reinvesting has been exercised for the purpose of paying the indebtedness upon the property. It is further to be noticed that the powers to mortgage and to sell are authorized to be exercised by him for the purpose specified, 'as though he held an absolute estate in said property.' The specific power given is to 'incumber the same by way of mortgage or trust deed or otherwise, and renew the same, for the purpose of raising money to pay off any and all incumbrances now on said property,' and the additional power to 'sell and dispose of any or all the real estate of which I may die seized or possessed, as though he held an absolute estate to the same, and out of the proceeds pay any of the incumbrances upon any of the property of which I may die seized and possessed,' and 'the remainder over and above what may be required to pay the indebtedness upon said property, the same now being incumbered, to reinvest in such way as he may see proper, and from time to time sell and reinvest, such reinvestment to continue to be held in trust the same as the estate of which I may die possessed.' It is too plain to admit of dispute, that under these ample powers Cyrenius Beers might have secured, by a new mortgage, a loan of the sum of money, at the stipulated rate of interest, necessary to pay his indebtedness to the appellee, and that he might by a new loan from the appellee itself, secured by a new mortgage, upon the same terms and for the same time as granted by the agreement of extension, have raised the money and discharged the mortgage now in suit. Such a transaction would have been strictly within the letter of the authority. And yet it would, in fact, have been nothing but what was accomplished by the agreement of extension, namely, a continuance of the old loan, secured by the old mortgage for a new term, and at a higher rate of interest. The two transactions, though not the same in form, are so in substance, and a substantial execution of the power is all that is required. In the case of Bullock v. Fladgate, 1 Ves. & B. 471, where the power was to convert an estate into money and to purchase other lands, which were the subject of the appointment, the master of the rolls, Sir WILLIAM GRANT, no conversion having taken place, but the original estate having been appointed, said: 'I apprehend that equity will uphold an appointment of the estate itself as amounting substantially to the same thing; on which principle it is that appointments deviating considerably from the letter of the powers under which they were made, have frequently been supported.' The power to incumber the estate 'by way of mortgage or trust deed or otherwise, and renew the same,' is broad enough to include the renewal and extension of an existing incumbrance as well as the creation of a new one; and this is not inconsistent with the declaration that it is to be 'for the purpose of raising money to pay off any and all incumbrances now on said property.' The object clearly was to meet the demand of the existing mortgagee for punctual payment of the debt secured, and to prevent the possible sacrifice of a forced sale to satisfy the demand, if not complied with; an object which could as well be accomplished by extending the existing mortgage, as by substituting a new one in its place. The power to renew a mortgage given for the purpose of raising money to pay off an existing incumbrance is expressly given; to renew an existing one, to avoid the necessity of creating a new incumbrance, is, we think, reasonably and fairly to be implied, as equally within the intention of the testatrix, and within the scope of the powers created by the will. The extension of a mortgage debt, and continuance of a mortgage lien, is one mode of incumbering the property, and may be a step, and possibly, under some circumstances, a very important and necessary one, in preparing for its payment and extinguishment. Indeed, it might well be, as the transaction shows the parties to it so understood, that Cyrenius Beers, uniting in himself the various characters of principal debtor and joint mortgagor, and of executor of his wife's will, tenant for life of the estate devised, and trustee with the ample powers conferred upon him of dealing with the incumbrance, was, in reality, constituted by the testatrix as the representative of all the interests created by the will, fully authorized, as if he were absolute owner of the estate, even as she could have done in her life. time, to consent to the extension of the time of payment of the mort. gage debt without prejudice to the mortgage security. There is no error in the record, and the decree of the circuit court is affirmed.

109.US.106

The authority confeyred by R. S., § 1000, to certify to the responsibility of an obligor on an appeal bond cannot be delegated. After close of term, citation must issue and be served before the security can be approved and the appeal completed so as to givo jurisdiction above.

We have no jurisdiction in this case. The appellee has not appeared and has never been served with a citation. The decree was entered on the fourteenth of June, 1879, and at the foot of the entry is the following: 'Petitioner prays an appeal, which is granted upon bond and security being given, according to law, within thirty days.' A copy of what purports to be an appeal bond, filed on the third of July, 1879, is found in the transcript, but there is no evidence that it was ever approved or taken as good and sufficient security by the court, or any justice or judge thereof. A commissioner of the circuit court has certified that he knew the obligors to be good and responsible for any cost that might accrue in the cause, but that is not enough. Section 1000 of the Revised Statutes requires the justice or judge signing the citation to take the security. This power cannot be delegated to the clerk or to a commissioner. O'Reilly v. Edrington, 96 U. S. 726. If the appeal is allowed in open court the security may be taken by the court and no citation is necessary; but if the security is not given until after the term is over, a citation must be issued and served. Sage v. Railroad Co. 96 U. S. 715. Unless an appellee voluntarily appears, we cannot proceed against him if the record does not show affirmatively that he has been brought within our jurisdiction by proper notice. The appeal is dismissed for want of jurisdiction.

109.US.336

The president has the power to supersede or remove an officer of the army by appointing another in his place, by and with the advice and consent of the Senate. Such power was not withdrawn by the provision in § 5 of the act of July 13th, 1866, c. 176 (14 Stat. 92), now embodied in § 1229 of the Revised Statutes, that "no officer in the military or naval service shall, in time of peace, be dismissed from service, except upon and in pursuance of the sentence of a court-martial to that effect, or in commutation thereof." Where a court-martial has cognizance of the charges made, and has jurisdiction of the, person of the accused, its sentence is valid, when questioned collaterally, although irregularitios or errors are alleged to have occurred in, its proceedings, in that the prosecutor was a member of the court and a witness on the trial. No opinion is expressed as to the propriety of such proceedings.

So far as regards the time after June 15, 1877, the fact that Goldman was appointed by the president, by and with the advice and consent of the senate, a second lieutenant in the fifth cavalry, in the place of the appellant, from June 15, 1877, and was commissioned as such, and accepted and held the appointment, is a bar to the suit of the appellant. It was held by this court, in Blake v. U. S. 103 U. S. 227, that the president has the power to supersede or remove an officer of the army by the appointment of another in his place, by and with the advice and consent of the senate, and that such power was not withdrawn by the provision in section 5 of the act of July 13, 1866, c. 176, (14 St. at Large, 92,) now embodied in section 1229 of the Revised Statutes, that 'no officer in the military or naval service shall, in time of peace, be dismissed from service, except upon and in pursuance of the sentence of a court-martial to that effect, or in commutation thereof.' It was held that this provision did not restrict the power of the president, by and with the advice and consent of the senate, to displace officers of the army or navy, by the appointment of others in their places. In regard to the rest of the time covered by the suit, it becomes necessary to decide the question raised as to the validity of the sentence of the court-martial. It is contended for the appellant that the court-martial had no jurisdiction to try him; that the fact that he made no objection to any member of the court was not a consent upon his part which conferred jurisdiction on the court-martial; and that the fact that Col. Merritt was prosecutor, witness, and judge rendered the proceedings of the court-martial void. The position is taken that, although there is no statute or regulation which forbids what was done in this case, the sentence of a court-martial in which one of the judges is prosecutor and witness is absolutely void, and that neither what the appellant said nor what he omitted to say, at the time, can cure the defect in the organization of the court. That the court-martial, as a general court-martial, had cognizance of the charges made, and had jurisdiction of the person of the appellant, is not disputed. This being so, whatever irregularities or errors are alleged to have occurred in the proceedings, the sentence of dismissal must be held valid when it is questioned in this collateral way. Thompson v. Tolmie, 2 Pet. 157; Voorhees v. Bank of U. S. 10 Pet. 449; Cornett v. Williams, 20 Wall. 226, 249. This doctrine has been applied by this court to the judgment and sentence of a naval general court-martial, which was sought to be reviewed on a writ of habeas corpus. Ex parte Reed, 100 U. S. 13. Where there is no law authorizing the court-martial, or where the statutory conditions as to the constitution or jurisdiction of the court are not observed, there is no tribunal authorized by law to render the judgment. Of that character are the authorities cited and relied on by the appellant; but they do not apply to the present case. Under the foregoing views we express no opinion as to the propriety of the proceeding of the court-martial in the respects in which they are assailed. The judgment of the court of claims is affirmed. Mr. Justice FIELD did not sit in this case or take part in its decision.

109.US.268

1. When the court below finds generally for a defendant, and elso makes special findings on the issues, no error can be assigned on the special findings. 2. The subject of the actin in this suit being an instrument under seal, and the cause having accrued in the State of Mississippi on the 1st day of April, 1871, the action is subject to the provisions of the code of the State of Mississippi of 1857 so far as it affects the limitation of the action. 8. When it appeared in a suit prosecuted in the State of Mississippi that the plaintiff at the time when the action was begun had no legal title to the matter which was the subject of the suit, but acquired his interest therein subsequently to the commencement of the suit, and judgment was rendered accordingly, that was not a judgment on ""a matter of form" in the sense in which that expression is used in § 2163 of the Mississippi Code of 1871 ; but one which may be pleaded in answer to another suit brought for the same cause of action.

It is insisted by the plaintiff in error that the special findings of the court are fatally defective, because they do not find the contract by which the suit was brought, or fix the date when the cause of action accrued, and that for this reason the judgment of the circuit court should be reversed. We might dismiss this assignment of error on the ground that there was a general finding for defendants on all the issues of fact, and that no error can be assigned on such a finding. Tioga R. R. v. Blossburg & C. R. R. 20 Wall. 137. But the special findings also fix specifically the date when the plaintiff's right of action accrued, to-wit, on the first day of April, 1871. In considering the sufficiency of the special findings the stipulation between counsel for submitting the cause to the court must be kept in mind. The only questions which, by this agreement, were to be submitted to the court were the issues raised by the replication to the sixth and seventh pleas, being pleas of the statute of limitations. The contract and breaches as set out in the declaration were, for the purpose of this trial, taken for granted. They were confessed by the pleas, and, as a matter of avoidance, the statute of limitations was set up. The court, by its general and special findings, has declared, as a conclusion of fact, that the matters set up in the pleas of the statute of limitations were proven. We think the findings pass upon every issue submitted to the court, and that they are not imperfect or defective. The limitation law of Mississippi applicable to this case was as follows: 'Art. 6. All actions of debt or covenant founded upon any bond, obligation or contract, under seal or upon the award of arbitrators, shall be commenced within seven years next after the cause of such action accrned, and not after.' The Revised Code of Mississippi of 1871, failed to provide any limitation for causes of action under seal which arose after October 1, 1871, the date fixed by section 2938, when that Code should take effect, but did contain the following provision: 'Sec. 2172. The several periods of limitation prescribed by this chapter shall commence from the date when it shall take effect, but the same shall not apply to any action commenced, nor to any cases where the right of action or of entry shall have accrued before that time, but the same shall be subject to the laws now in force; but this law may be pleaded in any case where a bar has accrued under the provisions thereof.' It will appear from these provisions of the statute law that the absence of any limitation of actions upon contracts under seal, between October 1, 1873, and April 19, 1873, can have no effect upon the controversy in this case. When the cause of action in this case arose, as found by the court, to-wit, on April 1, 1871, article 6, p. 400, of the Code of 1857, above quoted, barring actions on sealed instruments in seven years, was in force, and this limitation was expressly continued by the Revised Code of 1871. The case of Furlong v. State, 58 Miss. 717, relied on by counsel for plaintiff in error, can have no application to the case, for in that suit the cause of action accrued after the Code of 1871 had taken effect. Nothing was decided in that case which has any bearing on this. Therefore, upon the facts specially found, namely, that the cause of action in this case accrued on April 1, 1871, and that this suit was not brought until December 21, 1878, it is apparent that the sixth plea of defendant is sustained, unless this case is saved by the averment in the declaration that the suit was brought within a year after a former suit for the same cause of action had been defeated for matter of form. It is, therefore, to be considered whether, upon the special findings, the plaintiff is entitled to the saving clause of section 2163 of the Code of 1871, which is as follows: 'If, in any action duly commenced within the time allowed, the writ shall be abated or the action otherwise avoided or defeated by the death or marriage of any party thereto, or for any matter of form, * * * the plaintiff may commence a new action for the same cause at any time within one year after the abatement or other determination of the original suit.' The findings show that on March 26, 1877, an action, in all respects similar to this, was brought, on the same contract sued on in this case, by the plaintiff in error against the same defendants, and that, upon the trial of that suit, the court found that the plaintiff did not have a legal title to the claim sued on when the said action was commenced, and judgment was accordingly rendered in favor of the defendant and against the plaintiff. Upon these findings the circuit court was of opinion in this case that the former action was not defeated for any matter of form, and therefore that the plaintiff's cause did not fall within the exception of section 2173 of the Code of 1871, and was barred by the limitation of seven years applicable to contracts under seal. We are of opinion that the facts thus specially found sustain the judgment of the circuit court in this case. The supreme court of Mississippi, in the case of M. & C. R. Co. v. Orr, 43 Miss. 279, has construed the phrase 'for matter of form,' in section 2163, and declared that it 'relates to technical defects in the form of the action or pleadings or proof, or to variances between the one and the other.' This case it is evident does not fall within this rule. The action brought by plaintiff on March 26, 1877, was defeated because it appeared from the proof that when it was brought the plaintiff had no cause of action. The issue was deliberately and squarely presented by the pleadings in that former suit whether at the time of its commencement the right of action was in the plaintiff. The defendant averred it to be in the plaintiff's assignee in bankruptcy. The plaintiff replied that the contract on which his action was based had been bought at the assignee's sale and assigned to Thomas Boyle, who, before the commencement of the action, to-wit, in January, 1877, had assigned and transferred it to him. On this the defendant took issue, and on that issue the cause was tried. Upon the trial it turned out that the assignment by Boyle to the plaintiff was not made until January 28, 1878, more than 10 months after the action was brought, and the finding and judgment on the issue submitted was against the plaintiff and for the defendant. Upon this state of facts we think the former suit was defeated, not for any matter of form, but for matter of substance. The plaintiff failed in his action because the legal title to the contract on which he brought his suit was in another, because the evidence did not sustain the issue upon which he had staked his cause. The present case, therefore, does not fall within the exception prescribed by section 2137 of the Code of Mississippi of 1871, and is barred by the limitation of seven years prescribed by the Code of 1851, applicable to contracts under seal. It follows that the judgment of the circuit court was right, and must be affirmed.

107.US.59

1. The statute of New York of May 31, 1881, imposing a tax on every alien passenger who shall come by vessel from a foreign country to the port of New York, and holding the vessel liable for the tax, is a regulation of foreign commerce, and void. Henderson v. Mayor of New York, 92 U. S. 259, and Chy Lung v. Freeman, id. 275, cited, and the rulings therein made reaffirmed. 2. The statute is not relieved from this constitutional objection by declaring in its title that it is to raise money for the execution of the inspection laws of the State, which authorize passengers to be inspected in order to determine who are criminals, paupers, lunatics, orphans, or infirm persons, without means or capacity to support themselves and subject to become a public charge, as such facts are not to be ascertained by inspection alone. 3. The words "inspection laws," "imports," and "exports," as used in cl. 2, sect. 10, art. 1, of tie Constitution, have exclusive reference to property. 4. This is apparent from the language of ci. 1, sect. 9, of the same article, where, in regard to the admission of persons of the African race, the word "migration" is applied to free persons, and "importation" to slaves.

This was an action commenced in the court of common pleas for the city and county of New york to recover of the defendant the sum of one dollar for each alien passenger brought into New York by its vessels, for whom a tax has not before been paid, with penalties and interest. The case was removed into the circuit court of the United States for the southern district of New York, which court, on demurrer to the complaint, rendered a judgment in favor of the defendant. To that judgment this writ of error is prosecuted. The tax in this case is demanded under section 1 of a statute of New York, passed May 31, 1881, entitled 'An act to raise money for the execution of the inspection laws of the state of New York.' The section reads thus: 'Section 1. There shall be levied and collected a duty of one dollar for each and every alien passenger who shall come by vessel from a foreign port to the port of New York for whom a tax has not heretofore been paid, the same to be paid to the chamberlain of the city of New York by the master, owner, agent, or consignee of every such vessel within 24 hours atter the entry thereof into the port of New York.' It has been so repeatedly decided by this court that such a tax as this is a regulation of commerce with foreign nations, confided by the constitution to the exclusive control of congress, and this court has so recently considered the whole subject in regard to similar statutes of the states of New York, Louisiana, and California, that unless we are prepared to reverse our decisions, and the principles on which they are based, in the cases of Henderson v. Mayor of New York and Chy Lung v. Freeman, 92 U. S. 259-275, there is little to say beyond affirming the judgment of the circuit court, which was based on those decisions. The argument mainly relied on in the present case is that the new statute of New York, passed after her former statutes had been declared void in the Passenger Cases, 7 How. 283, and in the recent case of Henderson v. Mayor, is in aid of the inspection laws of the state. This argument is supposed to derive support from another statute, passed three days earlier, entitled 'An act for the inspection of alien emigrants and their effects by the commissioners of emigration.' This act empowers and directs the commissioners of emigration 'to inspect the persons and effects of all persons arriving by vessel at the port of New York from any foreign country, as far as may be necessary to ascertain who among them are habitual criminals, or pauper lunatics, idiots, or imbeciles, or deaf, dumb, blind, infirm, or orphan persons, without means or capacity to support themselves and subject to become public charge, and whether their persons or effects are affected with any infectious or contagious disease, and whether their effects contain any criminal implements or contrivances.' Subsequent sections direct how such characters, if found, shall be dealt with by the board. Other sections of the act of May 31st direct the chamberlain of the city to pay over to the commissioners of emigration all such sums of money as may be necessary for the execution of the inspection laws of the state of New York, and the net produce of all duties received by him under that act, after the necessary payments to the commissioners of emigration, to the treasury of the United States. These two statutes, construed together, it is argued, are inspection laws within the meaning of article 1, section 10, clause 2, of the constitution of the United States, to-wit: 'No state shall, without the consent of the congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any state on imports or exports shall be for the use of the treasury of the United States, and all such laws shall be subject to the revision and control of the congress.' What laws may be properly classed as inspection laws, under this provision of the constitution, must be determined largely by the nature of the inspection laws of the states at the time the constitution was framed. In the opinion of this court in the case of Turner v. State, ante, 44, delivered by Mr. Justice BLATCHFORD contemporaneously with the one in the present case, an elaborate examination of those statutes, many of which are cited, is to be found, and similar citations are found in a foot-note to the report of Gibbon v. Ogden, 9 Wheat. 119. We feel quite safe in saying that neither at the time of the formation of the constitution nor since has any inspection law included anything but personal property as a subject of its operation. Nor has it ever been held that the words 'imports and exports' are used in that instrument as applicable to free human beings by any competent judicial authority. We know of nothing which can be exported from one country or imported into another that is not in some sense property—property in regard to which some one is owner, and is either the importer or the exporter. This cannot apply to a free man. Of him it is never said he imports himself or his wife or his children. The language of section 9, art. 1, of the constitution, which is relied on by counsel, does not establish a different construction: 'The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the congress prior to the year 1808, but a tax or duty may be imposed on such importation, not exceeding $10 for each person.' There has never been any doubt that this clause had exclusive reference to persons of the African race. The two words 'migration' and 'importation' refer to the different conditions of this race as regards freedom and slavery. When the free black man came here he migrated; when the slave came he was imported. The latter was property, and was imported by his owner as other property, and a duty could be imposed on him as an import. We conclude that free human beings are not imports or exports within the meaning of the constitution. In addition to what is said above, it is apparent that the object of these New York enactments goes far beyond any correct view of the purpose of an inspection law. The commissioners are 'to inspect all persons arriving from any foreign country to ascertain who among them are habitual criminals or pauper lunatics, idiots or imbeciles, * * * or orphan persons, without means or capacity to support themselves, and subject to become a public charge.' It may safely be said that these are matters incapable of being satisfactorily ascertained by inspection. What is an inspection? Something which can be accomplished by looking at or weighing or measuring the thing to be inspected, or applying to it at once some crucial test. When testimony or evidence is to be taken and examined, it is not inspection in any sense whatever. Another section provides for the custody, the support, and the treatment for disease of these persons, and the transportation of criminals. Are these inspection laws? Is the ascertainment of a guilt of a crime to be made by inspection? In fact, these statutes differ from those heretofore held void only in calling them in their caption 'inspection laws,' and in providing for payment of any surplus, after the support of paupers, criminals, and diseased persons, into the treasury of the United States—a surplus which, in this enlarged view of what are the expenses of an inspection law, it is safe to say will never exist. A state cannot make a law designed to raise money to support paupers, to detect or prevent crime, to guard against disease, and to cure the sick, an inspection law, within the constitutional meaning of that word, by calling it so in the title. Since the decision of this case in the circuit court, congress has undertaken to do what this court has repeatedly said it alone had the power to do. By the act of August 3, 1882, entitled 'An act to regulate immigration,' a duty of 50 cents is to be collected for every passenger not a citizen of the United States who shall come to any port within the United States by steam or sail vessel from a foreign country, from the master of said vessel, by the collector of customs. The money so collected is to be paid into the treasury of the United States, and to constitute a fund to be called the immigrant fund, for the care of immigrants arriving in the United States, and the relief of such as are in distress. The secretary of the treasury is charged with the duty of executing the provisions of the act, and with supervision over the business of immigration. No more of the fund so raised is to be expended in any port than is collected there. This legislation covers the same ground as the New York statute, and they cannot coexist. The judgment of the circuit court is affirmed.

108.US.105

The record shows that the cause presented two questions in the court below; one not federal, the other federal. The opinion of the court below shows that the cause was decided there on the first point only : Eeld, That in cases coming from the Supreme Court of Louisiana the opinion of the court, as presented by the record, may be examined to determine whether the judgment can be reviewed.

The record shows that the defendants in error sought to enjoin the collection of a judgment against their property to enforce an assessment under the drainage laws of Louisiana, (1) because under the operation of the laws authorizing the judgment nothing more remained to be paid thereon; and (2) because the judgment had, in terms, been released and discharged by certain acts of the general assembly of the state, passed in 1877 and 1878. If the case was decided below on the first of these grounds no federal question is involved. It was settled long ago that, in cases coming to this court from the supreme court of Louisiana, the opinion of the court below, as set out in the record, may be referred to, if necessary, to determine whether the judgment is one we have authority to review. Armstrong v. Treasurer of Knox Co. 16 Pet. 285; Almonster v. Kenton, 9 How. 9; Grand Gulf R. R. & Bkg. Co. v. Marshall, 12 How. 167; Cousin v. Blanc, 19 How. 207; Murdock v. Memphis, 20 Wall. 633. From the statement of the case and the opinion found in this record, it is manifest the decision was placed entirely on the ground that the judgment was not collectible under the law as it stood before the acts of 1876 and 1877 were passed. Consequently the case was disposed of before the federal question presented by the pleadings was reached, and that question was not and need not have been decided. Under these circumstances we have no jurisdiction, and the motion to dismiss is granted.

107.US.463

1. This court has jurisdiction to re-examine the judgment of the Supreme Court of a State, rendered adversely to the right and title which a party to the suit specially sets up to land under a patent issued by the United States to another under whom he claims. 2. Where the Land Department rejected the claim of a party to pre-empt a tract of public land, it appearing from the evidence submitted that he had previously exercised the "pre-emptive right," -Hdd, that the finding of that fact by the department is conclusive. 3. A person is not entitled, under existing statutes, to more than one such "preemptive right," nor, after filing a declaratory statement for one tract, can he file such a statement for another tract.

This is a writ of error to the supreme court of the state of Nebraska, and the jurisdiction of this court is questioned. The substance of the original bill in the state court is that, in a contest for the right to enter a tract of land between Starks and Van Pelt, before the land department, the secretary of the interior erroneously decided in favor of Van Pelt, to whom a patent was issued; and the prayer of the bill is that Baldwin, who holds under Van Pelt, shall be decreed to hold the title in trust for Starks, and convey it to him, and be enjoined from prosecuting further an action of ejectment against plaintiff, which he has commenced for the land in controversy. That the decree which granted this relief denied to plaintiffs in error the right which they asserted under the patent from the United States, and was a decision against the title so asserted, and is therefore within section 709 of the Revised Statutes, is too well settled by numerous similar cases decided in this court to admit of further question. Johnson v. Towsley, 13 Wall. 86; Morrison v. Stalmaker, 104 U. S. 357; Marquez v. Frisbie, 101 U. S. 475. The case was tried in the state court upon the record of the proceedings before the land-office, including the evidence on which the patent was issued to Van Pelt in the contest between him and Starks, with a stipulation involving a few other unimportant matters. That record shows that upon all the questions involved the department decided in favor of Starks, except one, which was that he was disqualified to make the pre-emption claim he was then prosecuting by reason of having previously exercised that right in regard to other lands. Whether he had thus made a filing of a former declaratory statement was a question of fact much contested before the department, in regard to which Starks himself was sworn, as were also several other witnesses, and the record of the alleged filing was also produced. On all this evidence the commissioner of the general landoffice decided that he had filed the previous declaration, and was, therefore, disqualified as a pre-emptor of the land now in controversy. On appeal to the secretary of the interior this decision was affirmed, and Starks' claim was rejected, and Van Pelt's allowed, and the patent issued to him. The supreme court of Nebraska holds that the land department decided this question of fact erroneously, and that Starks never filed or made the former declaratory statement that he was a qualified pre-emptor for the land patented to Van Pelt, and decrees a conveyance to him by Baldwin of the legal title vested by the patent. Baldwin v. Starks, 7 Neb. 114. It has been so repeatedly decided in this court, in cases of this character, that the land department is a tribunal appointed by congress to decide questions like this, and when finally decided by the officers of that department the decision is conclusive everywhere else as regards all questions of fact, that it is useless to consider the point further. Where fraud or imposition has been practiced on the party interested, or on the officers of the law, or where these latter have clearly mistaken the law of the case as applicable to the facts, courts of equity may give relief; but they are not authorized to re-examine into a mere question of fact dependent on conflicting evidence, and to review the weight which those officers attached to such evidence. Johnson v. Towsley, 13 Wall. 86; Gibson v. Chouteau, Id. 102; Marquez v. Frisbie, 101 U. S. 475; Shepley v. Cowan, 91 U. S. 330. The case before us is a simple re-examination by the supreme court of Nebraska of the evidence on which the commissioner of the land-office and the secretary of the interior decided that Starks had made a prior declaratory statement for the pre-emption of other land, and a reversal of that decision. 7 Neb. 114. It is urged upon us that a written stipulation in the case describing what evidence shall be introduced, and the right to file written arguments, and that neither party shall be prejudiced by any defect in the pleadings, but that the case shall be decided on its merits, is a waiver of this point. But Van Pelt, the real party in interest, became a party to the suit, in a court below, six months after this stipulation was made between the counsel of Baldwin and of Starks, and is not bound by it. It would be strange, also, if, in a case like this, the right of the party to question the equitable jurisdiction of the court on the facts found, did not belong to the merits of the case. Some attempt is made to show that, under the decision of this court in Johnson v. Towsley, the objection to a double pre-emption does not apply except where the land is subject to entry by purchase. But the court was there speaking of the effect of such former filing of a declaration of intention under the act of 1841 on the rights afterwards asserted under the act of 1843. It is sufficient to say that both these acts, with all others on that subject, were considered in the Revised Statutes, and section 2261, which is a reproduction of the law in force when the rights of the parties here accrued, is positive that, when a party has filed his declaration of intention to claim the benefits of such provision (the right of pre-emption) for one tract of land, he shall not, at any future time, file a second declaration for another tract. The decree of the supreme court of Nebraska is reversed, and the case remanded to that court, with directions to affirm the decree of the district court for the county of Lancaster dismissing the bill.

106.US.596

1. A statute is not repealed by a later affirmative statute, which contains no repealing clause, unless the conflict between them cannot be reconciled, or the later covers the same ground as the former, and is clearly intended as a substitute therefor. 2. The statute of Minnesota of March 6, 1868, pursuant to which certain bonds were issued by the town of Red Rock, to aid in the construction of a railroad, was not repealed by the statute of March 6, 1870, post, p. 599. 3. The act of March 2, 1871, post, p. 600, has no effect upon the rights of the holder of the bonds, as there had been a previous compliance with every condition upon which the town had agreed to issue them.

The statute of March 5, 1870, is an affirmative act, and contains no express repeal of the act of March 6, 1868. The question is, therefore, whether the former act repeals the latter by implication. The leaning of the courts is against repeals by implication, (U. S. v. Tynen, 11 Wall. 88,) and if it be possible to reconcile two statutes, one will not be held to repeal the other. McCool v. Smith, 1 Black, 459. It was held by this court, in the case of Wood v. U. S. 16 Pet. 342, that a repeal by implication must be by 'necessary implication; for it is not sufficient to establish that subsequent laws cover some or even all the cases provided for by it, for they may be merely affirmative or cumulative or auxiliary.' In the case of U. S. v. Tynen, ubi supra, it was declared by Mr. Justice FIELD, speaking for the court, that 'it is when the later act plainly shows that it was intended as a substitute for the former act that it will operate as a repeal of that act.' So in the case of Henderson's Tobacco, 11 Wall. 652, this court said, Mr. Justice STRONG delivering its opinion, that 'when the powers and directions under the several acts are such as may well subsist together, an implication of repeal cannot well be allowed.' In the case of King v. Cornell, ante, 312, the chief justice, expressing the opinion of the court, on this point said: 'While repeals by implication are not favored, it is well settled that when two acts are not in all respects repugnant, if the later act covers the whole subject of the earlier, and embraces new provisions which plainly show that the last was intended as a substitute for the first, it will operate as a repeal.' See, also, Murdock v. Memphis, 20 Wall. 590. The result of the authorities cited is that when an affirmative statute contains no expression of a purpose to repeal a prior law, it does not repeal it unless the two acts are in irreconcilable conflict, or unless the later statute covers the whole ground occupied by the earlier and is clearly intended as a substitute for it, and the intention of the legislature to repeal must be clear and manifest. Guided by this rule, we are to settle the question upon which the judges of the circuit court were divided in opinion. It must be conceded that while the act of 1868 requires only the vote of a majority of the legal voters of the town before the bonds authorized thereby could be lawfully issued, the act of 1870 requires a vote of a majority of the supervisors, as well as a vote of the majority of the legal voters, to warrant the issue of bonds under its authority. It is, therefore, clear that the conditions upon which the towns of Mower county were authorized to issue their bonds were different under the two acts. Nevertheless, we are of opinion that the later act was neither repugnant to nor was it intended as a substitute for the former. This, we think, will appear from the following considerations. The act of 1868 authorized the issue of bonds by the towns of five counties, namely, Fillmore, Mower, Freeborn, Faribault, Martin, and Jackson. The map of Minnesota discloses the fact that they form a part of the southern tier of the counties of the state, and, beginning at the Mississippi river, extend in a right line from east to wast in the order named in the act. It appears from the record that prior to the passage of the act of 1868 the Southern Minnesota Railroad Company was chartered and empowered to construct and use a railroad from the Mississippi river westward across the state of Minnesota to its western boundary. This fact makes it reasonably clear that the object of the act of 1868 was to authorize the towns of the counties named to issue their bonds in aid of the construction of that line of railroad. The act of 1870 authorizes the towns, etc., of the counties of Mower, Dodge, Goodhue, and Dakota to issue bonds to aid in the construction of any railroad running into or proposed to be built through either or all of said counties. The map shows that these counties, beginning with Mower, on the southern boundary of the state, extend in a line northwardly to the Mississippi river opposite St. Paul. It is, therefore, reasonably clear that the purpose of this law was to aid in the construction of a line of railroad running north and south through these counties. It is true that each of the acts authorizes the towns to issue bonds in aid of any railroad running into either of the counties named therein, but this fact is consistent with the general purpose of the act as above indicated. We have, therefore, two acts,—one passed to authorize the towns in a certain group of counties to aid in the construction of one line of railroad, and the other to authorize the towns in another group of counties to aid in the construction of another line of road, and the county of Mower happens to be common to both groups. When we consider the different objects which it is reasonably clear the legislature had in view in the passage of these two acts, it is a fair construction to hold that it was not the intention of the legislature, by the passage of the later act, to repeal the older act, either totally or partially. It is not contended that the supposed repeal affected any of the counties named in the first act except the county of Mower. If the method of authorizing the issue of bonds in that act was an unsafe and vicious one, which the legislature intended to change, why did it not repeal the act as to other counties and apply to them also the restrictions contained in the later act? It would not be an unwarranted construction of the two acts to hold that bonds issued in aid of an east and west line of railroad passing through the counties named in the act of March 6, 1868, should be issued in conformity with that act, and that bonds issued in aid of a north and south line of railroad running through the counties named in the act of March 5, 1870, should be issued in conformity with the latter act. We think that the circumstance that the county of Mower happens to be in both groups of counties does not show a purpose on the part of the legislature to repeal the first act, so far as it affects that county. The language of the act of 1868 might have been sufficient to authorize the towns in Mower county to issue bonds in aid of a north and south line of railroad, but it was necessary to pass an act to authorize the towns in the counties of Dodge, Goodhue, and Dakota to issue bonds in aid of such a road. In passing this act the county of Mower was included, doubtless, for the purpose of making clear and unquestionable the authority of towns in that county to issue bonds for the same purpose. We, therefore, find no repugnance between the statutes, nor do we find the later act to be a revision of the entire subject covered by the older act, nor to be intended as a substitute for it. There is, therefore, no repeal. There is another consideration which is entitled, in our opinion, to some weight, and that is, that before the act of 1870 was passed the railroad company had made considerable progress in performing the conditions upon which the town of Red Rock had agreed to issue its bonds. It had located its line of road according to the proposition made by the town, and had for more than two months been engaged in constructing its road upon that line. It is true, it was under no binding contract with the town to go on and complete the line, but it had unmistakably manifested its purpose to do so, and had expended and was expending large sums of money in an effort to comply with the conditions upon which the town had agreed to issue its bonds. If, under these circumstances, the legislature had withdrawn the authority of the town to issue its bonds, or had imposed new conditions upon the issue, it would have been an act of bad faith. If possible, we should give such a construction to the act of the legislature as would relieve the state from such an imputation. Broughton v. Pensacola, 93 U. S. 266. The amendatory act of March 2, 1871, with its repealing clause, can have no effect on this controversy. That act was passed more than six months after the railroad had fully complied with all the conditions upon which the town of Red Rock had agreed to issue its bonds. It was too late then for the legislature to interfere. The railroad company was entitled to the bonds, and any attempt by the legislature to forbid their issue would have been unconstitutional and void. The burden is on the plaintiff in error to make it appear that the act of March, 1868, which authorized the issue of the bonds, the coupons of which are in suit, was repealed by the subsequent act of 1870. In view of the considerations which we have stated, we are of opinion that the repeal has not been satisfactorily shown. On the contrary, we think it reasonably clear that no repeal of the former act was intended by the passage of the act of 1870. As this view coincides with the opinion of the presiding judge in the circuit court, upon which the judgment of that court was based, it follows that the judgment should be affirmed; and it is so ordered.

106.US.629

1. The omission to state, in the certificate of division of opinion between the judges of the Circuit Court in a criminal proceeding, that the point of difference is certified "upon the request of either party pr their counsel," is not fatal to the jurisdiction of this court where such request can be fairly inferred. 2. Section 5519 of the Revised Statutes (post, p. 632) is unconstitutional.

The certificate of division of opinion in this case does not expressly state that the point of difference between the judges was certified 'upon the request of either party or their counsel.' Neither party challenges the jurisdiction of this court, but it has occurred to us as a question, and we have considered it, whether this omission in the certificate is fatal to our jurisdiction, and we have reached the conclusion that it is not. It fairly appears from the certificate that the point upon which the judges differed in opinion was stated, under their direction, in the presence of the counsel of both parties, without objection from either, and it is expressly stated that the cause was continued until the decision of this court upon the point of difference between the judges could be rendered. Had no certificate of division of opinion been made, the result must have been a judgment against the indictment, although the difference of opinion arose upon the demurrer of defendant; for no judgment could have been given against the defendant upon the indictment, if the judges were not agreed as to the constitutionality of the law upon which it was based. Hence it became the duty of the prosecuting officer, and the interest of the government which he represented, to request a certificate of division of opinion for the determination of the question by this court. The case is brought to this court by the counsel for the United States upon the point stated in the certificate; the case is suspended until our decision upon the point certified is made; and he asks us to decide the question upon which the judges of the circuit court differed. These circumstances, all of which appear of record, considered in connection with the fact that the court made the certificate, raise the legal presumption that a request for the certificate was duly preferred. The record evidence of the fact of the request by counsel for the United States is incontrovertible. It is suggested that under section 649 of the Revised Statutes, which provides that a jury may be waived 'whenever the parties or their attorneys of record file with the clerk a stipulation in writing waiving a jury,' this court has decided that the fact that the stipulation was in writing and filed with the clerk must appear of record in order to entitle the party to the review of the rulings of the court in the progress of the trial provided by section 700, and therefore that in the present case the record should distinctly show the request. But section 649 expressly requires that the waiver of the jury shall be in writing and shall be filed with the clerk. The section which provides for a certificate of division of opinion makes no such requirement in relation to the request for a certificate. In one case the jurisdictional fact is the filing of a certain paper writing with the clerk; in the other, the making of a request, which may be oral, to the court. In either case, when the jurisdictional fact fairly appears by the record, our jurisdiction attaches. So, in this case, if the request may be fairly inferred from such circumstances as we have mentioned, that is all that is necessary to satisfy the statute. In Sup'rs v. Kennicott, 103 U. S. 554, this court held that when a stipulation in writing was filed with the clerk, by which it was provided that the case might be submitted to the court on an agreed statement of facts, but which contained no express waiver of a jury, yet this amounted to a waiver sufficient to meet the requirements of section 649. And though the right of trial by jury is a constitutional one, yet this court has declared that when it simply appeared by the record that a party was present by counsel and had gone to trial before the court without objection or exception, a waiver of his right to a jury trial would be presumed, and he would be held in this court to the legal consequences of such waiver. Kearney v. Case, 12 Wall. 275. We are, therefore, of opinion that the request by counsel of the United States for a certificate of division is sufficiently shown by the record in this case, and that our jurisdiction is clear. We pass to the consideration of the merits of the case. Proper respect for a co-ordinate branch of the government requires the courts of the United States to give effect to the presumption that congress will pass no act not within its constitutional power. This presumption should prevail unless the lack of constitutional authority to pass an act in question is clearly demonstrated. While conceding this, it must, nevertheless, be stated that the government of the United States is one of delegated, limited, and enumerated powers. Martin v. Hunter, 1 Wheat. 304; McCulloch v. State, 4 Wheat. 316; Gibbons v. Ogden, 9 Wheat. 1. Therefore every valid act of congress must find in the constitution some warrant for its passage. This is apparent by reference to the following provisions of the constitution: Section 1 of the first article declares that all legislative powers granted by the constitution shall be vested in the congress of the United States. Section 8 of the same article enumerates the powers granted to the congress, and concludes the enumeration with a grant of power 'to make all laws which shall be necessary and proper to carry into execution the foregoing powers and all other powers vested by the constitution in the government of the United States, or in any department or officer thereof.' Article 10 of the amendments to the constitution declares that 'the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people.' Mr. Justice STORY, in his Commentaries on the Constitution, says: 'Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is whether the power be expressed in the constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be whether it is properly an incident to an express power and necessary to its execution. If it be, then it may be exercised by congress. If not, congress cannot exercise it.' Section 1243, referring to Virginia Reports and Resolutions, January, 1800, pp. 33, 34; President Monroe's Exposition and Message of May 4, 1822, p. 47; 1 Tuck. Bl. Comm. App. 287, 288; 5 Marsh. Wash. App. note 3; 1 Hamilton's Works, 117, 121. The demurrer filed to the indictment in this case questions the power of congress to pass the law under which the indictment was found. It is, therefore, necessary to search the constitution to ascertain whether or not the power is conferred. There are only four paragraphs in the constitution which can, in the remotest degree, have any reference to the question in hand. These are section 2 of article 4 of the original constitution, and the thirteenth, fourteenth, and fifteenth amendments. It will be convenient to consider these in the inverse of the order stated. It is clear that the fifteenth amendment can have no application. That amendment, as was said by this court in the case of U. S. v. Reese, 92 U. S. 214, 'relates to the right of citizens of the United States to vote. It does not confer the right of suffrage on any one. It merely invests citizens of the United States with the constitutional right of exemption from discrimination in the enjoyment of the elective franchise on account of race, color, or previous condition of servitude.' See, also, U. S. v. Cruikshank, 92 U. S. 542; S. C. 1 Woods, 322. Section 5519 of the Revised Statutes has no reference to this right. The right guarantied by the fifteenth amendment is protected by other legislation of congress, namely, by sections 4 and 5 of the act of May 31, 1870, (16 St. 141,) and now embodied in sections 5506 and 5507, Rev. St. Section 5519, according to the theory of the prosecution, and as appears by its terms, was framed to protect from invasion by private persons the equal privileges and immunities under the laws of all persons and classes of persons. It requires no argument to show that such a law cannot be founded on a clause of the constitution whose sole object is to protect from denial or abridgment, by the United States or states, on account of race, color, or previous condition of servitude, the right of citizens of the United States to vote. It is, however, strenuously insisted that the legislation under consideration finds its warrant in the first and fifth sections of the fourteenth amendment. The first section declares. 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' The fifth section declares 'the congress shall have power to enforce by appropriate legislation the provisions of this amendment.' It is perfectly clear, from the language of the first section, that its purpose also was to place a restraint upon the action of the states. In the Slaughter-house Cases, 16 Wall. 36, it was held by the majority of the court, speaking through Mr. Justice MILLER, that the object of the second clause of the first section of the fourteenth amendment was to protect from the hostile legislation of the states the privileges and immunities of citizens of the United States, and this was conceded by Mr. Justice FIELD, who expressed the views of the dissenting justices in that case. In the same case, the court, referring to the fourteenth amendment, said that 'if the states do not conform their laws to its requirements, then by the fifth section of the article of amendment congress was authorized to enforce it by suitable legislation.' The purpose and effect of the two sections of the fourteenth amendment above quoted were clearly defined by Mr. Justice BRADLEY in the case of U. S. v. Cruikshank, 1 Woods, 316, as follows: 'It is a guaranty of protection against the acts of the state government itself. It is a guaranty against the exertion of arbitrary and tyrannical power on the part of the government and legislature of the state, not a guaranty against the commission of individual offenses; and the power of congress, whether express or implied, to legislate for the enforcement of such a guaranty, does not extend to the passage of laws for the suppression of crime within the states. The enforcement of the guaranty does not require or authorize congress to perform 'the duty that the guaranty itself supposes it to be the duty of the state to perform, and which it requires the state to perform." When the case of U. S. v. Cruikshank came to this court the same view was taken here. The chief justice, delivering the opinion of the court in that case, said: 'The fourteenth amendment prohibits a state from depriving any person of life, liberty, or property without due process of law, or from denying to any person the equal protection of the laws; but this provision does not add anything to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the states upon the fundamental rights which belong to every citizen as a member of society. The duty of protecting all its citizens in the enjoyment of an equality of rights was originally assumed by the states, and it remains there. The only obligation resting upon the United States is to see that the states do not deny the right. This the amendment guaranties, and no more. The power of the national government is limited to this guaranty.' 92 U. S. 542. So, in Virginia v. Rives, 100 U. S. 313, it was declared by this court, speaking through Mr. Justice STRONG, that 'these provisions of the fourteenth amendment have reference to state action exclusively, and not to any action of private individuals.' These authorities show conclusively that the legislation under consideration finds no warrant for its enactment in the fourteenth amendment. The language of the amendment does not leave this subject in doubt. When the state has been guilty of no violation of its provisions; when it has not made or enforced any law abridging the privileges or immunities of citizens of the United States; when no one of its departments has deprived any person of life, liberty, or property without due process of law, or denied to any person within its jurisdiction the equal protection of the laws; when, on the contrary, the laws of the state, as enacted by its legislative, and construed by its judicial, and administered by its executive departments, recognize and protect the rights of all persons,—the amendment imposes no duty and confers no power upon congress. Section 5519 of the Revised Statutes is not limited to take effect only in case the state shall abridge the privileges or immunities of citizens of the United States, or deprive any person of life, liberty, or property without due process of law, or deny to any person the equal protection of the laws. It applies, no matter how well the state may have performed its duty. Under it private persons are liable to punishment for conspiring to deprive any one of the equal protection of the laws enacted by the state. In the indictment in this case, for instance, which would be a good indictment under the law if the law itself were valid, there is no intimation that the state of Tennessee has passed any law or done any act forbidden by the fourteenth amendment. On the contrary, the gravamen of the charge against the accused is that they conspired to deprive certain citizens of the United States and of the state of Tennessee of the equal protection accorded them by the laws of Tennessee. As, therefore, the section of the law under consideration is directed exclusively against the action of private persons, without reference to the laws of the states, or their administration by the officers of the state, we are clear in the opinion that it is not warranted by any clause in the fourteenth amendment to the constitution. We are next to consider whether the thirteenth amendment to the constitution furnishes authority for the enactment of the law under review. This amendment declares that 'neither slavery nor involuntary servitude, except as a punishment of crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.' 'Congress shall have power to enforce this article by appropriate legislation.' It is clear that this amendment, besides abolishing forever slavery and involuntary servitude within the United States, gives power to congress to protect all persons within the jurisdiction of the United States from being in any way subjected to slavery or involuntary servitude, except as a punishment for crime, and in the enjoyment of that freedom which it was the object of the amendment to secure. Mr. Justice SWAYNE, in U. S. v. Rhodes, 1 Abb. U. S. 28; Mr. Justice BRADLEY, in U. S. v. Cruikshank, 1 Woods, 308. Congress has, by virtue of this amendment, enacted that all persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalities, taxes, licenses, and exactions of every kind, and no other. Act of April 9, 1866, § 1, (14 St. 27.) But the question with which we have to deal is, does the thirteenth amendment warrant the enactment of section 5519 of the Revised Statutes. We are of opinion that it does not. Our conclusion is based on the fact that the provisions of that section are broader than the thirteenth amendment would justify. Under that section it would be an offense for two or more white persons to conspire, etc., for the purpose of depriving another white person of the equal protection of the laws. It would be an offense for two or more colored persons, enfranchised slaves, to conspire with the same purpose against a white citizen or against another colored citizen who had never been a slave. Even if the amendment is held to be directed against the action of private individuals, as well as against the action of the states and United States, the law under consideration covers cases both within and without the provisions of the amendment. It covers any conspiracy between two free white men against another free white man to deprive the latter of any right accorded him by the laws of the state or of the United States. A law under which two or more free white private citizens could be punished for conspiring or going in disguise for the purpose of depriving another free white citizen of a right accorded by the law of the state to all classes of persons,—as, for instance, the right to make a contract, bring a suit, or give evidence,—clearly cannot be authorized by the amendment which simply prohibits slavery and involuntary servitude. Those provisions of the law, which are broader than is warranted by the article of the constitution by which they are supposed to be authorized, cannot be sustained. Upon this question the case of U. S. v. Reese, 92 U. S. 214, is in point. In that case this court had under consideration the constitutionality of the third and fourth sections of the act of May 31, 1870, (16 St. 140,) and now constituting sections 2007, 2008, and 5506, Rev. St. The third section of the act made it an offense for any judge, inspector, or other officer of election, whose duty it was, under the circumstances therein stated, to receive and count the vote of any citizen to wrongfully refuse to receive and count the same; and the fourth section made it an offense for any person, by force, bribery, or other unlawful means, to hinder or delay any citizen from doing any act required to be done to qualify him to vote or from voting at any election. The indictment in the case charged two inspectors of a municipal election in the state of Kentucky with refusing to receive and count at such election the vote of William Garner, a citizen of the United States, of African descent. It was contended by the defendants that it was not within the constitutional power of congress to pass the section upon which the indictment was based. The attempt was made by the counsel for the United States to sustain the law as warranted by the fifteenth amendment to the constitution of the United States. But this court held it not to be appropriate legislation under that amendment. The ground of the decision was that the sections referred to were broad enough not only to punish those who hindered and delayed the enfranchised colored citizen from voting, on account of his race, color, or previous condition of servitude, but also those who hindered or delayed the free white citizen. The court, speaking by the chief justice, said: 'It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government. The courts enforce the legislative will, when ascertained, if within the constitutional grant of power. But if congress steps outside of its constitutional limitation and attempts that which is beyond its reach, the courts are authorized to, and, when called upon, must, annul its encroachment upon the reserved rights of the states and the people.' And the court declared that it could not limit the statute so as to bring it within the constitutional power of congress, and concluded: 'We must, therefore, decide that congress has not as yet provided by appropriate legislation for the punishment of the offenses charged in the indictment.' This decision is in point, and, applying the principle established by it, it is clear that the legislation now under consideration cannot be sustained by reference to the thirteenth amendment to the constitution. There is another view which strengthens this conclusion. If congress has constitutional authority under the thirteenth amendment to punish conspiracy between two persons to do an unlawful act, it can punish the act itself, whether done by one or more persons. A private person cannot make constitutions or laws, nor can he with authority construe them, nor can he administer or execute them. The only way, therefore, in which one private person can deprive another of the equal protection of the laws is by the commission of some offense against the laws which protect the rights of persons, as by theft, burglary, arson, libel, assault, or murder. If, therefore, we hold that section 5519 is warranted by the thirteenth amendment, we should by virtue of that amendment, accord to congress the power to punish every crime by which the right of any person to life, property, or reputation is invaded. Thus, under a provision of the constitution which simply abolished slavery and involuntary servitude, we should, with few exceptions, invest congress with power over the whole catalogue of crimes. A construction of the amendment which leads to such a result is clearly unsound. There is only other clause in the constitution of the United States which can, in any degree, be supposed to sustain the section under consideration, namely, the second section of article 4, which declares that 'the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states.' But this section, like the fourteenth amendment, is directed against state action. Its object is to place the citizens of each state upon the same footing with citizens of other states, and inhibit discriminative legislation against them by other states. Paul v. Virginia, 8 Wall. 168. Referring to the same provision of the constitution, this court said, in the Slaughter-house Cases, ubi supra, that it 'did not create those rights which it called privileges and immunities of citizens of the states. It threw around them in that clause no security for the citizen of the state in which they were claimed or excercised. Nor did it profess to control the power of the state governments over its own citizens. Its sole purpose was to declare to the several states that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other states within your jurisdiction.' It was never supposed that the section under consideration conferred on congress the power to enact a law which would punish a private citizen for an invasion of the rights of his fellow-citizen, conferred by the state of which they were both residents on all its citizens alike. We have, therefore, been unable to find any constitutional authority for the enactment of section 5519 of the Revised Statutes. The decisions of this court above referred to leave no constitutional ground for the act to stand on. The point in reference to which the judges of the circuit court were divided in opinion must, therefore, be decided against the constitutionality of the law.

108.US.379

Assignment for the Benefit of Creditors-Bankruptcy-Conflicto f Law. 1. A general assignment for the benefit of creditors, made without intent to. hinder, delay, or defraud creditors, is valid for the purpose of securing an equal distribution of the estate of the assignor among his creditors, in proportion to their several demands, except as against proceedings instituted under the Bankrupt Act for the purpose of securing the administration of the property in a bankruptcy court. 2. A general assignment of a debtor's property made for the benefit of creditors, purporting to be made under a State Insolvent Law which had, at the time of the assignment, been suspended in whole or in part by a bankrupt act, may nevertheless be sustained as sufficient to pass a title to assignees in the absence of proceedings in bankruptcy impeaching it, or of appropriate steps by the assignor for its cancellation. 3. The assignees of a debtor under a general assignment for the ratable distribution of his property among his creditors, purporting to be made under a local insolvent law of the State in which the debtor resides, deposited for convenience the proceeds of the sales of the debtor's property in a bank in another State. In the latter State, creditors of the debtor obtained judgment and execution against him. The execution being returned unsatisfied, the judgment creditors, under a local law of the latter State, obtained the appointment of -a receiver of the debtor's property within that State. The receiver, thereupon, brought suit against the assignees for the sum so deposited, claiming it as- the property of the debtor : Held, That the receiver was not entitled by reason of any conflict between the local statute and the Bankrupt Act, or by force of the judgment and the proceedings thereunder, to the possession of the assigned property or of its proceeds, as against the assignees, or to a priority of claim for the benefit of the judgment creditors upon such proceeds.

We are to consider in this case whether the final judgment of the court of appeals of New York has deprived plaintiff in error of any right, title, or privilege under the constitution or laws of the United States. This question arises out of the following facts, which are embodied in a special finding made by the court of original jurisdiction: We dismiss from consideration all suggestions in the pleadings of actual fraud upon the part either of Locke or his assignees. The court of original jurisdiction found as a fact—and upon that basis the case was considered by the court of appeals that the assignment was executed and delivered by the former and accepted by the latter in good faith and without any purpose to hinder, delay, or defraud any creditor of Locke. It is further found as a fact that the assignment was made with the intent, bona fide, to make an equal distribution of the proceeds of the trust estate among creditors in conformity with the local statute. The supreme court of New York ruled that the statute of New Jersey was, in its nature and effect, a bankrupt law, and the power conferred upon congress to establish a uniform system of bankruptcy, having been exercised by the passage of the act of 1867, the latter act wholly suspended the operation of the local statute as to all cases within its purview; consequently, it was held, the assignment was not valid for any purpose. The court of appeals, recognizing the paramount nature of the bankrupt act of congress, and assuming that the fourteenth section of the New Jersey statute, relating to the effect upon the creditor's claim of accepting a dividend, was inconsistent with that act and therefore inoperative, adjudged that other portions of the local statute which provided for the equal distribution of the debtor's property among his creditors, and regulated the general conduct of the assignee, were not inconsistent with nor were they necessarily suspended by the act of 1867; further, that the New Jersey statute did not create the right to make voluntary assignments for the equal benefit of creditors, but was only restrictive of a previously-existing right, and imposed, for the benefit of creditors, salutary safeguards around its exercise; consequently, had the whole of the New Jersey statute been superseded, the right of a debtor to make a voluntary assignment would still have existed. The assignment, as a transfer of the debtor's property, was, therefore, upheld as in harmony with the general object and purposes of the bankrupt act, unassailable by reason merely of the fact that some of the provisions of the local statute may have been suspended by the act of 1867. In the view which we take of the case it is unnecessary to consider all of the questions covered by the opinion of the state court and discussed here by counsel. Especially, it is not necessary to determine whether the bankrupt act of 1867 suspended or superseded all of the provisions of the New Jersey statute. Undoubtedly the local statute was, from the date of the passage of the bankrupt act, inoperative in so far as it provided for the discharge of the debtor from future liability to creditors who came in under the assignment and participated in the distribution of the proceeds of the assigned property. It is equally clear, we think, that the assignment by Locke of his entire property to be disposed of as prescribed by the statute of New Jersey, and therefore independently of the bankruptcy court, constituted itself an act of bankruptcy, for which, upon the petition of a creditor, filed in proper time, Locke could have been adjudged a bankrupt, and the property wrested from his assignees for administration in the bankruptcy court. In re Burt, 1 Dill. 440; In re Goldschmidt, 3 N. B. R. 168; In re Smith, 4 Ben. 5. The claim of Pickhardt and Kutroff existed at the time of the assignment. The way was therefore open for them, by timely action, to secure the control and management of the assigned property by that court for the equal benefit of all the creditors of Locke. But they elected to lie by until after the expiration of the time within which the assignment could be attacked under the provisions of the bankrupt act; and now seek, by this suit, in the name of the plaintiff in error, to secure an advantage or preference over all others; this, notwithstanding the assignment was made without any intent to hinder, delay, or defraud creditors. In order to obtain that advantage or preference, the plaintiff in error relies on the paramount force of the bankrupt act, the primary object of which, as this court has frequently announced, was to secure equality among the creditors of a bankrupt. Meyer v. Hilman, 91 U. S. 501; Reed v. McIntyre, 98 U. S. 509; Buchanan v. Smith, 16 Wall. 277. It can hardly be that a court is obliged in vindication of an act of congress to lend its aid to those who, neglecting or refusing to avail themselves of its provisions, seek to accomplish ends inconsistent with that equality among creditors which those provisions were designed to secure. If it should be assumed, for the purposes of this case, that the statute of New Jersey was, as to each and all of its provisions, suspended when the bankrupt act of 1867 was passed, it does not follow that the assignment by Locke was ineffectual for every purpose. Certainly that instrument was sufficient to pass the title from Locke to his assignees. It was good as between them, at least until Locke, in some appropriate mode, or by some proper proceedings, manifested a right to have it set aside or canceled upon the ground of a mutual mistake in supposing that the local statute of 1846 was inoperative. And in the absence of proceedings in the bankruptcy court impeaching the assignment, and so long as Locke did not object, the assignees had authority to sell the property and distribute the proceeds among all the creditors, disregarding so much of the deed of assignment as required the assignees, in the distribution of the proceeds, to conform to the local statute. The assignment was not void as between the debtor and the assignees simply because it provided for the distribution of the proceeds of the property in pursuance of a statute, none of the provisions of which, it is claimed, were then in force. Had this suit been framed for the purpose of compelling the assignees to account to all the creditors for the proceeds of the sale of the property committed to their hands, without discrimination against those who did not recognize the assignment and exhibit their demands within the time and mode prescribed by the New Jersey statute, a wholly different question would have been presented for determination. It has been framed mainly upon the idea that by reason of the mistake of Locke and his assignees in supposing that the property could be administered under the provisions of the local statute of 1846, even while the bankrupt act was in force, the title did not pass for the benefit of creditors according to their respective legal rights. In this view, as has been indicated, we do not concur. We are of opinion that, except as against proceedings instituted under the bankrupt act for the purpose of securing the administration of the property in the bankruptcy court, the assignment, having been made without intent to hinder, delay, or defraud creditors, was valid, for at least the purpose of securing an equal distribution of the estate among all the creditors of Locke, in proportion to their several demands, (Reed v. McIntyre, 98 U. S. 509;) and, consequently, we adjudge only that the plaintiff in error is not entitled, by reason of any conflict between the local statute and the bankrupt act of 1867, or by force of the before-mentioned judgment and the proceedings thereunder, to the possession of the assigned property or of its proceeds, as against the assignees, or to a priority of claim for the benefit of Pickhardt and Kutroff upon such proceeds. The judgment is affirmed. MATTHEWS, J., dissenting. Mr. Justice MILLER, Mr. Justice GRAY, Mr. Justice BLATCHFORD, and myself, are unable to agree with the opinion and judgment of the court in this case. The grounds of our dissent may be very generally and concisely stated as follows: The New Jersey statute of April 16, 1846, the validity and effect of which are in question, is an insolvent or bankrupt law, which provides for the administration of the assets of debtors who make assignments of all their assets to trustees for creditors, and for their discharge from liabilities to creditors sharing in the distribution. It was accordingly in conflict with the national bankrupt act of 1867 when the latter took effect, and from that time became suspended and without force until the repeal of the act of congress. It is conceded that the fourteenth section, which provides for the discharge of the debtor, is void by reason of this conflict, and, in our opinion, this carries with it the entire statute. For the statute is an entirety, and to take away the distinctive feature contained in the fourteenth section, destroys the system. It is not an independent provision, but an inseparable part of the scheme contained in the law. This being so, the assignment in the present case must be regarded as unlawful and void as to creditors. For it was made in view of this statute, and to be administered under it. Such is the express recital of the instrument, and the finding of the fact by the court. It is as if the provisions of the act had been embodied in it and it had declared expressly that it was executed with the proviso that no distribution should be made of any part of the debtor's estate to any creditor except upon condition of the release of the unpaid portion of his claim. It is not possible, we think, to treat the assignment as though the law of the state in view of which it was made, and subject to the provisions of which it was intended to operate, had never existed, or had been repealed before its execution; because there is no reason to believe that, in that state of the case, the debtor would have made an assignment on such terms. To do so is to construct for him a contract which he did not make, and which there is no evidence that he intended to make. It must be regarded, then, as a proceeding under the statute of New Jersey, and as such, with that statute, made void as to creditors by the national bankrupt act of 1867. Otherwise that uniform rule as to bankruptcies, which it was the policy of the constitution and of the act of congress, pursuant to it, to provide, would be defeated. No title under it, therefore, could pass to the defendants in error, and the judgment creditors who acquired a lien upon the fund in their hands were by law entitled to appropriate it, as the property of their debtor, to the payment of their claims. For these reasons we are of opinion that the judgment of the court of appeals of New York should be reversed.

107.US.414

The rank and pay of retired officers of the army are subject to the control of Congress.

This is an appeal from the court of claims. The claimant, Thomas J. Wood, was appointed to the office of colonel of the second regiment of cavalry, in the army of the United States, in November, 1861, having been commissioned as a brigadier-general of volunteers in October, 1861. In December, 1862, while in command of the first division, left wing, of the Fourteenth army corps, he was wounded at the battle of Stone river. In September, 1864, while in command of the third division of the Fourth army corps, he was wounded at the battle of Lovejoy's Station, Georgia. These divisional commands were the commands of an officer of the rank of major-general, but he was not commissioned as a majorgeneral of volunteers until January, 1865, nor breveted as a major-general in the army until March, 1865. On the twenty-eighth of July, 1866, an act was passed by congress (chapter 299, 14 St. at Large, 337) which provided as follows, (section 32:) 'Officers of the regular army, entitled to be retired on account of disability occasioned by wounds received in battle, may be retired upon the full rank of the command held by them, whether in the regular or volunteer service, at the time such wounds were received.' In January, 1868, Gen. Wood was ordered, at his own request, to appear before a retiring board. In February, 1868, the board made the following finding: 'The board is of the opinion that Brevet Major-Gen. Thomas J. Wood colonel Second United States cavalry, is incapacitated for active service, and that said incapacity is the result of three wounds received in battle in the line of his duty, while commanding a division of troops in the service of the United States.' This finding was approved by the president, and by his authority and direction this order was issued from the adjutant-general's office, June 9, 1868: 'Brevet Major-Gen. Thomas J. Wood, colonel Second United States cavalry, having, at his own request, been ordered before a board of examination, and having been found by the board to be physically incompetent to discharge the duties of his office on account of wounds received in battle, and the finding having been approved by the president, his name will be placed upon the list of retired officers of that class in which the disability results from long and faithful service, or some injury incident thereto. In accordance with section 32 of the act approved July 28, 1866, Gen. Wood is, by direction of the president, retired with the full rank of major-general.' Gen. Wood accepted the rank of major-general on the retired list, as contained in said order, and received the pay of that rank from June 10, 1868, to March 3, 1875. On the third of March, 1875, congress passed an act, (chapter 178, 18 St. at Large, 512) entitled 'An act for the relief of Gen. Samuel W. Crawford, and to fix the rank and pay of retired officers of the army.' The first section of this act provided that the retirement of Gen. Crawford, as a colonel, for disability on account of a wound received in battle, should be amended so that he should be retired and be borne on the retired list of the army as a brigadier-general, 'he having held the rank of a brigadier-general at the time he was wounded;' his retired pay as brigadier-general to commence from the passage of the act. The second section of the act provided as follows: 'All officers of the army who have been heretofore retired by reason of disability arising from wounds received in action shall be considered as retired upon the actual rank held by them, whether in the regular or volunteer service, at the time when such wound was received, and shall be borne on the retired list and receive pay hereafter accordingly; and this section shall be taken and construed to include those now borne on the retired list, placed upon it on account of wounds received in action.' The section contains some exceptions, which it is not contended apply to the case of Gen. Wood. On the twenty-third of March, 1875, an order was issued from the adjutant-general's office, providing that, by direction of the president, and conformably to said act of March 3, 1875, the retired list of the army, under the heading, 'Officers retired with the full rank of the command held by them when wounded, in conformity with sections 16 and 17 of the act of August 3, 1861, and section 32 of the act of July 28, 1866,' is amended to fix the rank of the following-named officers, from March 3, 1875, as below enumerated: 'Brigadier-generals, Thomas J. Wood (heretofore major-general,) and two other major-generals; colonels, three brigadier-generals; lieutenant-colonels, two colonels; major, one colonel; mounted captain, one lieutenant-colonel; captains, two colonels; mounted first lieutenants, two mounted captains; first lieutenants, three captains and one mounted first lieutenant; second lieutenant, one mounted second lieutenant.' There were 73 officers retired on the rank of the command held by them when wounded, under section 32 of the act of 1866. Of these, all but 19 fell within the exceptions named in section 2 of the act of 1875. Of these 19, eight were restored to the rank on which they were originally retired, after the promulgation of the order of March 23, 1875. After March 3, 1875, Gen. Wood received only the pay of a brigadier-general retired, $4,125 per year; the pay of a major-general retired during the same time having been $5,625 per year. In September, 1879, Gen. Wood brought suit against the United States in the court of claims to recover the sum of $1,500 a year for four and a half years, as such difference in pay, claiming that he held the office of major-general on the retired list of the army be appointment of the president, by said order of June 9, 1868, and that congress had no power to remove him from that office and appoint him to the office of brigadier-general on the retired list. The court of claims dismissed the petition on the merits. The view of that court was that, under the statutes of the United States in reference to the army, the office of an officer of the army and his rank are not necessarily identical; that the office has a rank attached to it, expressed by its title, when no other rank is conferred on the officer; that, the office remaining the same, the officer may have a different rank conferred on him, as a title of distinction, to fix his relative position with reference to other officers as to privilege, precedence, or command, or to determine his pay; that by section 1274 of the Revised Statutes, the pay of officers on the retired list of the army is determined by the rank upon which they are retired; that by section 1094, the officers of the army on the retired list are a part of the army of the United States, and therefore no one can be upon that list who is not an officer appointed in the manner required by section 2 of article 2 of the constitution; that an officer of any grade, on the active list, thus appointed, may be retired with a different rank from that which belongs to his office, when congress so provides; that this is not to appoint him to a new and different office, but is to transfer him to the retired list, and to change his rank, while he holds the same office; and that in connection with this change of rank his pay may be changed. These views appear to us to be sound. Gen. Wood, holding the office of a colonel of cavalry in the army, his retirement with the rank of major-general, under the act of 1868, did not confer on him the office of major-general. He remained in the office of colonel of cavalry, and acquired a higher rank, and higher pay, as a retired officer. Such rank not being an office, congress could change his rank, and with it his pay, as it did by the act of 1875. His actual rank when he was wounded was that of brigadier-general of volunteers, although the rank of the command which he then held was that of a major-general. The rank of his command when wounded was the test of rank and pay under the act of 1866, while his actual rank when wounded, whether in the regular or volunteer service, was the test of rank and pay under the act of 1875. Congress had the same right to change the claimant's rank and pay, by reducing them, that it had to change the rank and pay of Gen. Crawford, by section 1 of the act of 1875, by increasing them, the standard in both cases being the actual rank held by the officer at the time he was wounded. The offices of both were left untouched. The pay of retired officers is a matter entirely within the control of congress, and so is their rank. The judgment of the court of claims is affirmed.

106.US.700

1. Although the refusal, at the close of the testimony for the plaintiff, to direct a verdict for the defendants would justify a reversal of a judgment against them, yet if they proceed with their defence and introduce testimony which is not in the record, the judgment on the verdict which the jury, under proper instructions, find against them will not be reversed on account of that refusal. 2. The plaintiff, in the course of his employment as an engine-driver for the defendant, a railroad company, was injured by the collision of the train on which he was with another train of the company. Held, that the court did not err in charging the jury that the company, if its negligence had a share in causing the injuries of the plaintiff, was liable, notwithstanding the contributory negligence of his fellow-servant.

This was a suit brought by Cummings, the plaintiff in error, an engineman in the employ of the Grand Trunk Railway Company of Canada, to recover damages for an injury sustained in the course of his employment by a collision of a train, on which he was, with another train of the same company. The claim of Cummings is that the collision was caused by the fault and neglect of the company; that of the company, that it was caused by the negligence and disobedience of a fellow-servant of Cummings. This was the issue at the trial, and at the close of the testimony on the part of Cummings the company asked the court to instruct the jury to return a verdict in its favor, which being refused, an exception was taten. All the testimony before the jury when this instruction was asked has been put into the bill of exceptions. The company then introduced testimony touching the points covered by that on the part of Cummings. None of this testimony is in the record. The company did not contend that Cummings was guilty of contributory negligence. At the close of the case on both sides the court gave to the jury sundry instructions, not excepted to, and then, at the request of Cummings, instructed them further, 'that if Noyes [the person claimed to be a co-servant] was negligent, and if the company was also wanting in ordinary care and prudence in discharging their duties, and such want of ordinary care contributed to produce the injury, and the plaintiff did not know of such want of ordinary care and prudence, the defendant would be liable; that if two of those causes contributed, the company would be liable; that the mere negligence of Noyes of itself does not exonerate them, if one of their own faults contributes.' To this an exception was taken. The jury returned a verdict for Cummings, upon which a judgment was rendered against the company. To reverse that judgment this writ of error was brought, and the only errors assigned are (1) the refusal to direct a verdict for the company at the close of Cummings' testimony; and (2) the giving of the instruction which was excepted to. It is undoubtedly true that a case may be presented in which the refusal to direct a verdict for the defendant at the close of the plaintiff's testimony will be good ground for the reversal of a judgment on a verdict in favor of the plaintiff, if the defendant rests his case on such testimony and introduces none in his own behalf; but if he goes on with his defense and puts in testimony of his own, and the jury, under proper instructions, finds against him on the whole evidence, the judgment cannot be reversed, in the absence of the defendant's testimony, on account of the original refusal, even though it would not have been wrong to give the instruction at the time it was asked. The present case comes within this rule. The evidence introduced on the part of the company is not in the bill of exceptions, and the court was not asked to instruct the jury to find for the defendant on the whole case. Under such circumstances, it must be presumed, in the absence of anything to the contrary, that when the case was closed on both sides, there was enough in the testimony to make it proper to leave the issues to be settled by the jury. In this we are not to be understood as saying that the instruction ought to have been given when it was asked. In the instruction which was given we find no error. It was in effect that if the negligence of the company contributed to, that is to say, had a share in producing, the injury, the company was liable, even though the negligence of a fellow-servant of Cummings was contributory also. If the negligence of the company contributed to, it must necessarily have been an immediate cause of, the accident, and it is no defense that another was likewise guilty of wrong. The judgment of the circuit court is affirmed.

109.US.110

The owners of three steam-tugs which had pumping machinery were employed by the master and agent of a ship sunk at a wharf in New Orleans, with a cargo on board, to pump out the ship for a compensation of $50 per hour for each boat, "to be continued until the boats were discharged." When the boats were about to begin pumping, the United States marshal seized the ship and cargo on a warrant on a libel for salvage. After the seizure the marshal took possession of the ship and displaced the authority of the master, but permitted the tugs to pump out the ship. After they had pumped for about eighteen hours, the ship was raised and placed in a position of safety. The tugs remained by the ship, ready to assist her in case of need, for twelve days, but their attendance was unnecessary, and not required by any peril of ship or cargo. .In libels of intervention, in the suit for salvage, the owners of the tugs claimed each $50 per hour forthe whole time, including the twelve days, as salvage. The claims were resisted by insurers of the cargo, to whom it wa- abandoned. The District Court allowed $500 to each tug, and $500 to the crew of each tug. On appeal by the owners Qf the tugs, the Circuit Court decreed to each of them $1,000. On further appeal by them, this court affirmed that decree. Held, That to enforce the contract as one continuing during the time claimed would be highly inequitable ; and, as against the insurers of the cardo, the right of the tugs to compensation must be regarded as having terminated when the ship and cargo were raised, and the tugs must be regarded as having been then dischargbl. The decree of the Circuit Court was entered M1ay 24th, 1880. June 26th a cross appeal to this court, returnable at its October term following, was allowed. The bond thereon was filed in the Circuit Court July 5th. But the appellants in it did not docket it, or enter their appearance on it, in this court, until September 27th, 1883: Hr d, That it must be dismissed.

The sole question to be considered on the appeal of the appellants is whether the amounts which the circuit court awarded to them severally, as owners of the three steam-tugs, should be increased. The errors assigned by the appellants are (1) that the circuit court held that the contract for pumping out the ship was inequitable, and ought not, under the facts of the case, to be enforced; (2) that it held that the salvage service was of a low grade; (3) that it allowed to each boat only $1,000. These are all assigned as errors in conclusions of law. There is no complaint made by the libelants of the conclusion of law that the service was a salvage service. In the case of The Connemara, at the last term, [2 SUP. CT. REP. 754,] this court said: 'The services performed being salvage services, the amount of salvage to be awarded, although stated by the circuit court in the form of a conclusion of law, is largely a matter of fact and discretion, which cannot be reduced to precise rules, but depends upon a consideration of all the circumstances of each case.' We are of opinion that no ground is shown, on the facts found, for awarding a larger sum to the appellants than the circuit court allowed them. The contract, as found, was a contract made by the master and the agent of the ship with the association to which the three tugs belonged, 'to pump out' the ship, for a compensation of $50 per hour for each boat, 'to be continued until the boats were discharged.' This does not give a very clear idea as to what the contract was. If the pumping out should be completed there could be no continuance of the service of pumping out the ship, or of the contract, as a contract to pump out the ship. If the contract was that the compensation named should continue, in any event, and whether the ship was pumped out or not, until the boats should be discharged, the attendance of the boats along-side of the ship after she was pumped out and raised and placed in a position of safety, the boats being ready to render assistance, in case it was needed, for a period of about 12 days, is found to have been unnecessary, and not required by any peril of the Tornado and cargo. It is not found, as a fact, that the boats were formally discharged by the master or agent of the ship. But it is found that after the contract was made, and while the ship still lay at the bottom of the river, and when the boats were about to begin to pump her out, the marshal seized the ship and cargo under a warrant on a libel for salvage filed against the ship and cargo, and took possession of the ship, and displaced the authority of the master, but permitted the boats to proceed and pump out the ship; and that they, with other assistance, pumped out the ship, and raised her and placed her in a position of safety by a pumping service of about 18 hours. It is not found that the marshal requested or sanctioned in any way the continued presence of the tugs after the ship was raised and made safe. The authority of the master was displaced by the marshal. On these facts we are of opinion that to enforce the contract as one continuing during the time claimed by the libelants would be highly inequitable; and that, as against the insurers of the cargo, the right of the boats to compensation must be regarded as having terminated when the ship and cargo were raised, and the boats must be regarded as having been then discharged, within any fair interpretation which can be given to the contract. A compensation of $50 per hour for the 18 hours of actual pumping would amount to $900. Every agreement for salvage compensation is subject, as to amount, to the judgment of the court as to its being equitable and conformable to the merits of the case. Pars. Shipp. 306; The Helen and George, Swab. 368; Jones, Salv. 94 et seq. The final decree of the circuit court was entered on the twenty-fourth of May, 1880. On the twenty-sixth of June following, the underwriters on the cargo filed a petition in the circuit court, praying a cross-appeal to this court from the decree, and it was allowed, returnable at the October term, 1880. On the fifth of July following, the bond on the cross-appeal was filed in circuit court. But the appellants, in the cross-appeal, did not docket it, or enter their appearance on it, in this court, until September 27, 1883; and the appellees in it are entitled to have it dismissed. Grigsby v. Purcell, 99 U. S. 505; The S. S. Osborne, 105 U. S. 447. The cross-appeal is dismissed, and, on the appeal of the libelants, the decree of the circuit court is affirmed.

109.US.478

When the evidence given at the trial, with all the inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court may direct a verdict for the defendant. A ground switch, of a form in common use, was placee in a railroad yard, in a space six feet wide between two tracks; the lock of the switch was in the middle of the space; and the handle, when lying flat extended to within a foot of the, adjacent rail, and could be safely and effectively worked by standing in the middle opposite the lock, using reasonable care. The brakeman of a train on one of the tracks, while working at the switch, standing at the end of the handle, was struck by an engine on the other track: Held, that there was no such proof of fault on the part of the railroad corporation, in the construction and arrangement of the switch, as would support an action against it for the injury. A brakeman, working a switch for his train on one track in a railroad yard, is a fellow servant with the engineman of another train of the same corporation upon an adjacent track; and cannot maintain an action against the corporation for an injury caused by the negligence of the engineman in driving hIs engine too fast and not giving due notice of its approach, without proving negligence of the corporation in employing an unfit engineman. A statute which provides that a bell or whistle shall be placed on every locomotive engine, and shall be rung or sounded by the engineman or fireman sixty rods from any highway crossing, and until the highway is reached, and that "the corporation owning the railroad shall be liable to any person injured for all damages sustained" by reason of neglect so to do, does not make the corporation liable for an injury caused by negligence of the fireman in this respect, to a fellow servant.

1. It is the settled law of this court that when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant. Pleasants v. Fant, 22 Wall. 116; Herbert v. Butler, 97 U. S. 319; Bowditch v. Boston, 101 U. S. 16; Griggs v. Houston, 104 U. S. 553. And it has recently been decided by the house of lords, upon careful consideration of the previous cases in England, that it is for the judge to say whether any facts have been established by sufficient evidence from which negligence can be reasonably and legitimately inferred; and it is for the jury to say whether from those facts, when submitted to them, negligence ought to be inferred. Metropolitan Ry. Co. v. Jackson, 3 App. Cas. 193. Tried by this test, there was no sufficient evidence of any negligence on the part of the railroad company, in the construction and arrangement of the switch, to warrant a verdict for the plaintiff on that ground. The testimony of the plaintiff and of his witness was too slight. A railroad yard, where trains are made up, necessarily has a great number of tracks and switches close to one another, and any one who enters the service of a railroad corporation, in any work connected with the making up or moving of trains, assumes the risks of that condition of things. Although it was night, and the plaintiff had not been in this yard before, his lantern afforded the means of perceiving the arrangement of the switch and the position of the adjacent tracks. The switch was of a form in common use, and was, to say the least, quite as fit for its place and purpose as an upright switch would have been. It could have been safely and efficiently worked by standing opposite the lock, midway between the tracks, using reasonable care; and it was unnecessary, in order to work it, to stand, as the plaintiff did, at the end of the handle, next the adjacent track. 2. The general rule of law is now firmly established, that one who enters the service of another takes upon himself the ordinary risks of the negligent acts of his fellow-servants in the course of the employment. This court has not hitherto had occasion to decide who are fellow-servants, within the rule. In Packet Co. v. McCue, 17 Wall. 508, and in Railroad Co. v. Fort, Id. 553, the plaintiff maintained his action because at the time of the injury he was not acting under his contract of service with the defendant. In the one case, he had wholly ceased to be the defendant's servant; in the other, being a minor, he was performing, by direction of his superior, work outside of and disconnected with the contract which his father had made for him with the defendant. In Hough v. Ry. Co. 100 U. S. 213, and in Wabash Ry. Co. v. McDaniels, 107 U. S. 454, [S. C. 2 SUP. CT. REP. 932,] the action was for the fault of the master, either in providing an unsafe engine, or in employing unfit servants. Nor is it necessary, for the purposes of this case, to undertake to lay down a precise and exhaustive definition of the general rule in this respect, or to weigh the conflicting views which have prevailed in the courts of the several states; because persons standing in such a relation to one another as did this plaintiff and the engineman of the other train, are fellow-servants, according to the very great preponderance of judicial authority in this country, as well as the uniform course of decision in the house of lords, and in the English and Irish courts, as is clearly shown by the cases cited in the margin.1 They are employed and paid by the same master. The duties of the two bring them to work at the same place, at the same time, so that the negligence of the one in doing his work may injure the other in doing his work. Their separate services have an immediate common object—the moving of the trains. Neither works under the orders or control of the other. Each, by entering into his contract of service, takes the risk of the negligence of the other in performing his service; and neither can maintain an action for an injury caused by such negligence against the corporation, their common master. The only cases cited by the plaintiff, which have any tendency to support the opposite conclusion, are the decisions of the supreme court of Wisconsin in Chamberlain v. Milwaukee & M. R. R. Co. 11 Wis. 248, and of the supreme court of Tennessee in Haynes v. East Tennessee & G. R. Co. 3 Cold. 222, each of which wholly rejects the doctrine of the master's exemption from liability to one servant for the negligence of another, and the first of which has been overruled by the later cases in the same state. This action cannot therefore be maintained for the negligence of the engineman in running his engine too fast, or in not giving due notice of its approach. 3. The statute of West Virginia, on which the plaintiff relies, has no application to this case. There is no evidence that the engine which struck the plaintiff was about to cross a highway; and the main, if not the sole, object of the statute evidently was to protect travelers on the highway. O'Donnell v. Providence & W. R. Co. 6 R. I. 211; Harty v. Cent. R. Co. 42 N. Y. 468. It may, perhaps, include passengers on the trains, or strangers, not trespassers, on the line of the road. But it does not supersede the general rule of law which exempts the corporation from liability to its own servants for the fault of their fellow-servants. Judgment affirmed.

108.US.556

The proceedings under a petition for habeas corpus are in their nature civil proceedings, even when instituted to arrest a criminal prosecution and secure personal freedom : and the appellate revisory jurisdiction of this court is governed by the statutes regulating civil proceedings. As the statute authorizes a certificate of division of opinion between judges sitting in circuit only after final judgment in civil proceedings, the court cannot take jurisdiction under a certificate by which it appears that there was a difference in opinion between the judges as to the points certified, without entry of final judgment.

orpus sued out of the circuit court of the United States for the district of California by the petitioner, Tom Tong, a subject of the emperor of China, for the purpose of an inquiry into the legality of his detention by the chief of police of the city and county of San Francisco for an alleged violation of an order or ordinance of the board of supervisors of such city and county regulating the licensing, etc., of public laundries, and the case comes here, before judgment below, on a certificate of division of opinion between the judges holding the court as to certain questions which arose at the hearing. The allegation in the petition is that the order, for the violation of which the petitioner is held, is in contravention of the constitution of the United States and of a treaty between the United States and the emperor of China. A question which meets us at the outset is whether we have jurisdiction, and that depends on whether the proceeding is to be treated as civil or criminal. Section 650 of the Revised Statutes provides that whenever, in any civil suit or proceeding in a circuit court, there occurs a difference of opinion between the judges holding the court as to any matter to be decided, ruled, or ordered, the opinion of the presiding judge shall prevail and be considered the opinion of the court for the time being; and section 652, that when final judgment or decree is rendered, the points of disagreement shall be certified and entered of record under the direction of the judges. That being done, the judgment or decree may, under the provisions of section 693, be brought here for review by writ of error or appeal, as the case may be. By section 951 it is provided that whenever any question occurs on the trial or hearing of any criminal proceeding before a circuit court and the judges are divided in opinion, the point on which they disagree shall, during the same term, upon the request of either party, or of their counsel, be stated under the direction of the judges, and certified under the seal of the court to this court at its next session. It follows, from these provisions of the statutes, that, if this is a civil suit or proceeding, we have no jurisdiction, as there has been no final judgment in the circuit court, but, if it is a criminal proceeding, we have. The writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of personal liberty. Resort to it sometimes becomes necessary, because of what is done to enforce laws for the punishment of crimes; but the judicial proceeding under it is not to inquire into the criminal act which is complained of, but into the right to liberty notwithstanding the act. Proceedings to enforce civil rights are civil proceedings, and proceedings for the punishment of crimes are criminal proceedings. In the present case the petitioner is held under criminal process. The prosecution against him is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding in that prosecution. On the contrary, it is a new suit brought by him to enforce a civil right, which he claims, as against those who are holding him in custody, under the criminal process. If he fails to establish his right to his liberty, he may be detained for trial for the offense; but if he succeeds he must be discharged from custody. The proceeding is one instituted by himself for his liberty, not by the government to punish him for his crime. This petitioner claims that the constitution and a treaty of the United States give him the right to his liberty, notwithstanding the charge that has been made against him, and he has obtained judicial process to enforce that right. Such a proceeding on his part is, in our opinion, a civil proceeding, notwithstanding his object is, by means of it, to get released from custody under a criminal prosecution. It was said by Chief Justice MARSHALL, speaking for the court, as long ago as Ex parte Bollman, 4 Cranch, 101: 'The question whether the individual shall be imprisoned is always distinct from the question whether he shall be convicted or acquitted of the charge on which he is to be tried, and therefore these questions are separated, and may be decided in different courts.' The questions that may be certified to us on a division of opinion before judgment are those which occur on the trial or hearing of a criminal proceeding before a circuit court. It follows that we cannot take jurisdiction of the case in its present form, and it is consequently remanded to the circuit court for further proceedings according to law.

108.US.260

1. When one of two sureties gives a mortgage of his real estate to his co-surety to protect him against loss by reason of having become security for the principal, a creditor of the principal is not entitled to be subrogated in equity in place of the co-surety, and enjoy the benefit of the mortgage. 2. The distinction in principle between the rights of creditors of the principal debtor in the security where the debtor furnishes it to his sureties, and their rights where such security is furnished by one co-surety to the other, examined and explained. 3. When each of two co-sureties gives security to the other, to protect him against liability on account of the principal beyond a fixed sum, no right to resort to the security exists, until obligations on the part of the principal have been met by the surety beyond the sum named.

The facts upon which the controversy in this suit depends are as follows: The ground on which the court below proceeded seems to have been that the mortgages given by the co-sureties, each to the other, were in equity securities for the payment of the principal debt, which inured to the benefit of the creditors upon the principle of subrogation. The application of the principle of subrogation in favor of creditors and of sureties has undoubtedly been frequent in the courts of equity in England and the United States, and is an ancient and familiar head of their jurisdiction. It was distinctly stated, as to creditors, in the early case of Maure v. Harrison, 1 Eq. Cas. Abr. 93, where the whole report is as follows: 'A bond creditor shall in this court, have the benefit of all counter-bonds or collateral security given by the principal to the surety; as if A. owes B. money, and he and C. are bound for it, A. gives C. a mortgage or bond to indemnify him, B. shall have the benefit of it to recover his debt.' And the converse of the rule was stated by Sir WILLIAM GRANT in Wright v. Morley, 11 Ves. 12, where he said: 'I conceive that as a creditor is entitled to the benefit of all the securities the principal debtor has given to his surety, the surety has full as good an equity to the benefit of all the securities the principal gives to the creditor.' And it applies equally between sureties, so that securities placed by the principal in the hands of one to operate as an indemnity by payment of the debt, shall inure to the benefit of all. Many sufficient Maxims of the law conspire to justify the rule. To avoid circuity and multiplicity of actions; to prevent the exercise of one's right from interfering with the rights of others; to treat that as done which ought to be done; to require that the burden shall be borne by him for whose advantage it has been assumed; and to secure equaity among those equally obliged and benefited, are perhaps not all the familiar adages which may legitimately be assigned in support of it. It is, in fact, a natural and necessary equity which flows from the relation of the parties, and though not the result of contract, is nevertheless the execution of their intentions. For, when a debtor, who has given personal guaranties for the performance of his obligation, has further secured it by a pledge in the hands of his creditor, or an indemnity in those of his surety, it is conformable to the presumed intent of all the parties to the arrangement, that the fund so appropriated shall be administered as a trust for all the purposes, which a payment of the debt will accomplish; and a court of equity accordingly will give to it this effect. All this, it is to be observed, as the rule verbally requires, presupposes that the fund specially pledged and sought to be primarily applied is the property of the debtor, primarily liable for the payment of the debt; and it is because it is so that equity impresses upon it the trust, which requires that it shall be appropriated to the satisfaction of the creditor, the exoneration of the surety, and the discharge of the debtor. The implication is that a pledge made expressly to one is in trust for another, because the relation between the parties is such that that construction of the transaction best effectuates the express purpose for which it was made. It follows that the present case cannot be brought within either the terms or the reason of the rule; for, as the property, in respect to which the creditors assert a lien, was not the property of the principal debtor, and has never been expressly pledged to the payment of the debt, so no equitable construction can convert it by implication into a security for the creditor. It is urged that the logic of the rule would extend it so as to cover the case of all securities held by sureties for purposes of indemnity of whatsoever character and by whomsoever given. But this suggestion is founded on a misconception of the scope of the rule and the rational grounds on which it is established. Of course, if an express trust is created, no matter by whom, nor of what, for the payment of the debt, equity will enforce it, according to its terms, for the benefit of the creditor, as a cestui que trust; but the question concerns the creation of a trust, by operation of law, in favor of a creditor, in a case where there was no duty owing to him, and no intention of bounty. A stranger might well choose to bestow upon a surety a benefit and a preference, from considerations purely personal, in order to make good to him exclusively any loss to which he might be subjected in consequence of his suretyship for another. In such a case, neither co-surety nor creditor could, upon any ground of priority in interest, claim to share in the benefit of such a benevolence. There may be, indeed, cases in which it would not be inequitable for the debtor himself to make specific pledges of his own property, limited to the personal indemnity of a single surety, without benefit of participation or subrogation; as, when the liability of the surety was contingent upon conditions not common to his co-sureties, and which may never become absolute. Hopewell v. Bank of Cumberland, 10 Leigh, 206. We are referred by counsel to the case of Curtis v. Tyler, 9 Paige, 432, as an instance in which the rule has been extended to securities in the hands of a surety not derived from the principal debtor. But the fact in that case is otherwise. The question was as to the right of an assignee of a mortgage to the benefit of the guaranty of one Allen to make good any deficiency in the mortgaged property to pay the mortgage debt. This bond had been given to one Murray, a prior holder of the mortgage, who had assigned to the complainant. The court say, in the opinion, (p. 436:) 'In the case under consideration, Murray had assigned the bond and mortgage given to him, and had guarantied the payment thereof to the assignee. He, therefore, stood in the situation of a surety for the mortgagor, when the latter procured the bond of Allen as a collateral security, or as a guaranty of the payment of his original bond and mortgage. The present holders are, therefore, in equity entitled to the benefit of this collateral bond, in the same manner and to the same extent as if it had been given to Murray before he assigned his bond and mortgage, and had been expressly assigned by him to Beers, and by Beers to the complainants.' It thus distinctly appears that the bond of Allen, which was the collateral security in controversy, was procured by and derived from the original mortgagor, the principal debtor. We have been referred to no case which forms an exception to the rule as we have stated it. But the claim of the complainants fails for another reason. The right of subrogation, on which they rest it, is merely a right to be substituted in place of each of the co-sureties in respect to the other, in order to enforce the mortgages given by them respectively according to their terms. But the conditions of those mortgages have not been broken, and the very fact which is supposed to confer the right upon the creditor to interpose—the insolvency of the sureties—has rendered it impossible for either to fasten upon the other a breach of the condition of his mortgage. As neither can pay his own proportion of the liability they agreed to divide, neither can claim indemnity against the other for an overpayment. It is entirely clear, therefore, that neither of the sureties could be, under the circumstances as they appear, entitled, as mortgagee, to foreclose the mortgage against the other. The condition of each mortgage was that the mortgagor would perform his part of the agreement and indemnify the mortgagee against the consequences of a failure to do so. Unless one of them had been compelled to pay, and had in fact paid, an excess beyond his agreed share of the debt, there could have been no breach of the conditions of the mortgage, and consequently no right to a foreclosure and sale of the mortgaged premises. And the amount which the mortgagor could be required to pay, as a condition of redeeming the mortgaged premises, in case of foreclosure, would be, not the amount which the mortgagee, as between himself and the common creditor, was bound to pay on account of the debt, but the amount which, as between himself and his co-surety, the mortgagor, he had paid beyond the proportion which, by the terms of the agreement between them, was the limit of his liability. The mortgages were not created for the security of the principal debt, but as security for a debt possibly to arise from one surety to the other. As to which of them has there been as yet any default? Plainly none as to either. And yet the complainants assert the right to foreclose them both; a claim that is self-contradictory, for, by the very nature of the arrangement, it is impossible that there should be a default as to both. The fact that one mortgagor had failed to perform his part of the agreement could only be on the supposition that the other had not only fully performed it on his part, but had paid that excess against which his co-surety had agreed to indemnify him. There is, therefore, no right to the subrogation insisted on, because there is nothing to which it can apply. It results, therefore, that the complainants were not entitled toparticipate in the benefit of the mortgages in question, nor to share in the proceeds of the sale of the mortgaged premises; but that the same should have been applied to the payment of the other judgment and mortgage liens upon the premises, in the order of their priority. The decree of May 29, 1879, therefore, being the one from which the appeal was taken, is reversed, and the cause remanded with directions to take such further proceedings therein, not inconsistent with this opinion, as justice and equity require.

109.US.150

A, being entitled to a fund in the hands of the agent of Great Britain before the Mixed Claims Commission of 1873, B, his assignee in bankruptcy, fileda bill against him and C (C claiming the fund as purchaser), to restrain them from collecting the money. A restraining order first, and then a preliminary injunction were issued. D was then appointed receiver of the find. Meanwhile E commenced suit in the same court against A and C, claiming one-fourth of the fund, and obtained preliminary injunction restraining them from collecting more than three-fourths. Subsequently an order was made in B's suit in which, after reciting that it was made by consent of parties in both suits, both restraining orders were vacated, payment of one-half of the fund was ordered to C discharged of claims of the plaintiffs in either suit, and the payment of the other half was ordered to D, and D was directed to hold it subject to the claims of B and E. This decree was carried out. Both bills were demurred to, and in each suit decree of dismissal was entered at special term on the demurrer. In B's suit appeal was taken and the decree was affirmed. In E's suit, the decree of dismissal was entered on the 24th June, 1875, and an appeal was taken on the same day. On the 28th of the same June the decree was amended by adding an order that the receiver pay the fund to C, and notice thereof was at once given to the receiver with demand of payment. The receiver repaired to court, and asked the court what he should do. The court directed him to obey the decree. He then surrendered the fund to C. E's appeal was perfected on the 12th July by filing an appeal bond. Judgment was reversed on appeal, and an order entered that the receiver should pay the money into court. Failing to do this, he was adjudged in contempt, and an order issued for an accounting. The auditor took testimony and returned it with a report that the receiver had done his duty in paying the money to C. This report being confirmed, an appeal was taken from that decree. The receiver moved to dismiss the appeal, on the ground that he was not party to the suit. .red, 1. That though the receiver was not party to the suit, he was principal party to a side issue which had arisen in it, which was appealable, and that the judgment upon it was final, and the appeal was properly taken. 2. That under the rules and practice of the Supreme Court of the District of Columbia, the suspensive force of the appeal in B's case was not operative until the filing of the bond. 8. That the completing of the decree in that suit by amendment on the 28th June was within the power of the special term. 4. That these proceedings against.the receiver being in equity, are not governed by the rules regulating a aupersedea8 of execution. 5. That a decree in equity dissolving an injunction is not affected by a supersedeas, unless the court below order the continuance of the injunction pending appeal. Whether that should not have been done in this caae-Quaers.

An award against the United States of nearly $200,000 having been made to one A. R. McDonald, a British subject, by the mixed commission appointed under the treaty of 1871, his bankrupt assignee, Thomas J. Phelps, filed a bill in the supreme court of the District of Columbia to restrain him from collecting the money, and to have it made subject to his debts, making one White also a defendant, who claimed to have purchased the claim. A restraining order, and subsequently a preliminary injunction, was granted according to the prayer of the bill, and George W. Riggs was appointed a receiver to collect and hold the money until the further order of the court. In the mean time a bill was filed by Charles E. Hovey and William Dole (the present appellants) against McDonald and White, setting up a lien upon one-fourth of the fund under an alleged agreement by which they were to receive that proportion as compensation for their services in aiding the prosecution of the claim, and praying that the lien might be established, and that the defendants might be enjoined from collecting or receiving more than three-fourths of the award. A preliminary injunction was also granted in accordance with the prayer of this bill. On the sixteenth of February, 1875, the following consent decree, or order, was made, to-wit: 'In the Supreme Court of the District of Columbia. 'THOMAS J. PHELPS, Assignee, v. AUGUSTINE R. MCDONALD and WILLIAM WHITE. (In Equity. No. 3,910.) 'This cause came on to be further heard on this sixteenth day of February, A. D. 1875; and thereupon, and upon consideration thereof, and with the consent of the parties to this suit, and of Charles E. Hovey and William P. Dole, parties complainant in a certain cause in equity in this court, numbered 3,937, against the same defendants, and claiming one-fourth of the award in the proceedings mentioned: 'It is, this sixteenth day of February, A. D. 1875, ordered, adjudged, and decreed—— '(1) That the restraining orders heretofore made in both said causes are hereby vacated. '(2) That the decree made in this cause on the twenty-eighth day of December, A. D. 1874, appointing George W. Riggs, Esq., receiver, and granting a provisional injunction, is modified as follows, viz.: That the defendant William White may receive from the agents of the British government the one-half of the net amount of the award in the proceedings mentioned, free and discharged of all claims of the plaintiffs in both the causes above mentioned, to enable the said defendant to pay the expenses incurred by the defendant A. R. McDonald in the prosecution of this claim; which sum of one-half of said award the court finds to be the reasonable expense incident to the prosecution of the said claim by said defendant A. R. McDonald before said mixed commission, exclusive of said claim of Hovey & Dole. '(3) That the remaining half of the net amount of said award shall be paid to the said George W. Riggs; and it is ordered, adjudged, and decreed that the defendants shall execute all such orders, receipts, and acquittances necessary to enable the said George W. Riggs to collect the same. And the said George W. Riggs shall hold the said half of the said award subject to the claims, liens, and rights of the said Charles E. Hovey and William P. Dole and of the plaintiff in this cause, to be determined by the further decree of this court in this cause, and in the cause of said Hovey & Dole, hereinbefore mentioned. It is further ordered that said receiver be directed to invest the money so placed in his hands in bonds of the United States, or in 3 65-100 bonds of the District of Columbia, guarantied by the United States, as he may deem best for the interest of the parties concerned, and that a copy of this decree be filed in this last-mentioned cause.' This decree was carried out; the money was collected from the agent of the British government, one-half of it being received by Mr. Riggs as receiver, and the suits progressed in due course. Both bills were demurred to, and both demurrers were sustained, and the bills dismissed by the court in special term. In the case of Hovey and Dole a decree was entered on Thursday, the twenty-fourth of June, 1875, simply decreeing that the demurrer to the bill be sustained, and that the bill be dismissed, with costs. An appeal to the general term was entered the same day on the minutes of the court. On Monday, the twenty-eighth of June, 1875, the decree was amended by adding thereto the clause 'that the receiver appointed in this cause, and in Phelps, Assignee, v. McDonald and White, No. 3,910, be directed to pay the funds belonging to said cause to the said defendants, McDonald and White, or order, and thereon said receiver shall be discharged;' and at the same time a decree was entered in the suit of Phelps, assignee, that the demurrer be sustained, and the bill dismissed with costs, and the same direction was given to the receiver to deliver the funds to McDonald and White. An appeal was entered in this case also on the day the decree was rendered; but no appeal bond or undertaking was filed in either case until the twelfth of July. Soon after the entry of the last decree, and on the same day, a copy of it was served on the receiver by the attorney of McDonald and White, and the fund in his hands, then consisting of district bonds, was demanded of him; but, before he delivered the bonds, the attorney of Hovey and Dole appeared and gave him verbal notice that an appeal had been taken, and insisted that it was a supersedeas of the decree. Thereupon the receiver and the attorneys repaired to the court, and the receiver asked the judge what he should do, and was simply told to obey the decree,—the complainants' attorney at the same time offering to furnish the security named by the court on the appeal. The receiver then delivered the bonds to the defendants. In the case of Phelps, the bankrupt assignee, the decree of the special term was afterwards affirmed; but in that of Hovey and Dole the decree of the special term was reversed, and the counsel for the complainants obtained an order on the defendants to pay back into court the money, or funds, which they had obtained from the receiver. Failing to do this, they were adjudged in contempt, and a decree pro confesso was entered against them. Thereupon the complainants obtained an order on the receiver to file his account; and this being done, and if appearing thereby that, in obedience to the decree of the special term, he had delivered the fund to the defendants, the account was referred to an auditor, and the complainants filed exceptions thereto on the ground that he had delivered up the funds without due authority. The auditor took testimony as to the circumstances of the appeal, the notice given to the receiver, and his conduct in the matter, and reported that in his opinion the receiver had only done his duty. This report was confirmed by a decree of the general term, and from that decree the present appeal was taken. The first matter to be determined is the motion on the part of the receiver to dismiss the appeal for the reason that he was not a party to the suit. This motion cannot prevail. The proceedings instituted by the order requiring the receiver to file his account, and the subsequent reference of that account to an auditor, and the exceptions thereto, were all directed against the receiver for the purpose of rendering him personally responsible for the fund which had been placed in his hands, and which he had delivered over in obedience to the original decree. It was a side issue in the cause, in which the complainants on the one side, and the receiver on the other, were real and interested parties. The decree confirming the auditor's report was, as to this matter, a final decree against the complainants and in favor of the receiver. We have so often considered cases of this sort, arising incidentally in a cause, but presenting independent issues to be determined between the parties to them, that it is unnecessary to enter into a detailed discussion of the subject at this time. The receiver, though not a party in the principal suit, was an officer of the court appointed in the suit, and was a principal party to the particular question raised by the proceedings referred to. It is only necessary to refer to some of the cases that apply to the subject. It will be found fully discussed in Blossom v. Railroad Co. 1 Wall. 655; Butterfield v. Usher, 91 U. S. 248; Trustees v. Greenough, 105 U. S. 531; and Hinckley v. Gilman R. Co. 94 U. S. 467. In the case last cited a decree was rendered against a receiver, directing him to pay into court a certain sum of money, being the balance found due from him on the settlement of his accounts. He appealed from this decree, and his right to appeal was sustained by this court. This case is a direct authority to show that the receiver in the present case, had the decree been against him, could have taken an appeal; and, if he would have had a right to appeal, surely the opposite parties have the same right. We are brought, then, to consider the effect of the appeal taken from the decree of the special term upon the efficacy of said decree as a justification of the receiver in handing over to the defendants the fund in his possession. To arrive at a satisfactory conclusion, it will be necessary, in the first place, to take notice of the question as to the power of the court in special term to amend its decree after the appeal was entered. By the laws relating to the District of Columbia, the supreme court of the district has general terms and special terms, the latter being held by a single judge and proceeding in the conduct of causes as if it were a separate court. Rev. St. D. C. § 753. The special term renders final judgments and decrees; and any party aggrieved by an order, judgment, or decree of the special term, if the merits are involved, may appeal to the general term. Section 772. The court in general term is authorized to adopt rules to regulate the time and manner of making appeals, and to prescribe the terms and conditions upon which they may be made. Section 770. Such rules have been adopted. One is, that executions may issue after judgment in special term, unless the party condemned move the vacate it or set it aside for fraud, deceit, surprise, or irregularity, or resort to a review of it before the general term. Rule 89. Another is, that appeals must be brought within 30 days after the judgment or decree is made or pronounced; and that they shall not stay execution (as between private parties) where the judgment is for a specific sum, unless, within 20 days after judgment or decree, an undertaking be given, with security, to abide by, perform, and pay the judgment or decree. Rule 91. We do not perceive that there is anything peculiar in these appeals from the special to the general term to take them out of the operation of the general principles and rules which govern appeals from one court to another. One general rule in all cases (subject, however, to some qualifications) is that an appeal suspends the power of the court below to proceed further in the cause. This includes a suspension of the power to execute the judgment or decree. But, of course, besides merely taking an appeal, those additional things must be done which the law requires to be done in order to give to the appeal a suspensive effect, whether it be security for the payment of the claim or other condition imposed by law. One of the qualifications of the general rule as to the suspensive effect of an appeal is that the inferior court may perfect its judgment or decree, usually, at any time during the term at which it is rendered. If, when an appeal is taken or a writ of error is sued out, the record has not been made up, it may be made up in due form. If any obvious mistake has occurred it may be corrected; as, where the jury by mistake has given damages in a penal action, or has given damages for a larger sum than the declaration demanded, the plaintiff may enter a remittitur of the damages on the record after a writ of error is brought. Tidd, Pr. 942. And it is laid down as a general rule, at law, (the principle of which is equally applicable to chancery proceedings,) that those things which are amendable before error brought are amendable afterwards, so long as diminution may be alleged and certiorari awarded; provided, of course, that the time for amendment has not passed by. Tidd, 714. In chancery proceedings it is a rule that when a clerical error has crept into the decree, or some ordinary direction has been omitted, the court will entertain an application to rectify it, even though it has been passed and entered. Where a decree has omitted a direction that is of course at the time it is made, it may be corrected by the insertion of that direction; as where, in a creditor's suit, the decree has omitted the usual direction to take an account of the personal estate, it was ordered to be inserted. Daniell, Ch. Pr. c. 25, § 5. This rule is formulated in the eighth equity rule established by this court for the government of the circuit courts, which declares that 'clerical mistakes in decrees, or decretal orders, or errors arising from any accidental slip or omission, may, at any time before an actual enrollment thereof, be corrected by order of the court or judge thereof, upon petition, without the form or expense of a rehearing.' Such corrections, by analogy to the practice in cases at law, may, undoubtedly, be made after an appeal is taken. In the present case, the correction of the form of the decree by adding the direction to the receiver to pay over the money in his hands to the defendants was a thing of course; it was merely expressing the legal effect and conseqence of the decree. It was an amendment which the court below, (the special term,) was competent to make notwithstanding the appeal. The terms of the injunction were that the defendants should be restrained from receiving the money until the final hearing of the cause. Of course, when the cause was finally heard, and the bill dismissed, the injunction ceased to have effect by its own terms. The appointment of Mr. Riggs as receiver was for the purpose of holding the money as agent of the court, and withholding it from the defendants until the decision. The words of his commission were, 'to collect and hold the money until and subject to the further order of the court.' It was therefore a necessary consequence of the decree of dismissal, that the injunction should be dissolved, and that the receiver should be discharged and directed no longer to withhold the money from the possession of the defendants. The dissolution of the injunction and the discharge of the receiver were directions of course to be inserted in the decree of dismissal, unless the court should affirmatively order otherwise. The court below, it is true, in view of the appeal, might have made an order to continue the injunction and to retain the property in the receiver's hands; but that was a matter of discretion, to be exercised according to the justice of the case. If the judge did not see fit to exercise it, it was of course to add to the decree of dismissal its legal effect and consequence. The making of the correction without notice to the complainants, if such notice was requisite, was an irregularity of which the receiver was not bound to know. We are of opinion, therefore, that the completion of the decree on the twenty-eighth of June, by adding the usual direction, was within the power of the special term; and the rights of the parties to this appeal must be determined as if the decree had originally contained that direction. This brings us to the question of the effect of the appeal as a supersedeas, or as a suspension of the decree thus corrected. The appeal was taken in time, and verbal notice that it had been taken and would be followed up by the proper undertaking was given to the receiver at once, before he had parted with the funds in his hands. At the same time he was served with a copy of the decree ordering him to deliver those funds to the defendants. The question is whether, under these circumstances, he paid the money in his own wrong, notwithstanding the order of the court. A supersedeas, properly so called, is a suspension of the power of the court below to issue an execution on the judgment or decree appealed from; or, if a writ of execution has issued, it is a prohibition emanating from the court of appeal against the execution of the writ. It operates from the time of the completion of those acts which are requisite to call it into existence. If, before those acts are performed, an execution has been lawfully issued, a writ of supersedeas, directed to the officer holding it, will be necessary; but if the writ of execution has been, not only lawfully issued, but actually executed, there is no remedy until the appellate proceedings are ended, when, if the judgment or decree be reversed, a writ of restitution will be awarded. To remedy the inconveniencies that arose from an immediate issue of execution before the appellate proceedings could be perfected, the original judiciary act of 1789 provided, and the present Revised Statutes now provide, that no execution shall issue upon judgments in the courts of the United States, where a writ of error may be a supersedeas, until the expiration of 10 days after the judgment. Rev. St. § 1007. This regulation applies to proceedings in equity as well as to cases at law. But it does not extend to the present case. The regulation of appeals from the special to the general term of the supreme court of the district is specially provided for in the laws and rules before referred to, which cover the whole subject. By these rules it is declared that after judgment is entered in the circuit court, or at a special term, execution may be issued, unless the party condemned move to vacate or set it aside, or resort to a review of it before the general term; but no appeal shall operate as a stay of execution where the judgment is for a specific sum of money, unless the appellant, with surety, within 20 days after the judgment or decree, execute and file an undertaking in the form prescribed. The appellants insist that this rule makes it unlawful to issue an execution within the 20 days. We doubt very much whether that is the true meaning of the rule. It would be more in accordance with the general mode of construing such regulations to hold that the supersedeas does not take effect until the condition is complied with, and will not take effect at all unless complied with during the time limited. But this case is not within the terms of the rule. There was no decree for a specific sum of money; there was no decree at all in favor of the complainants; and no execution was applicable to or could be issued in the case, except an execution for the costs of the defendants. The truth is that the case is not governed by the ordinary rules that relate to a supersedeas of execution, but by those principles and rules which relate to chancery proceedings exclusively. It depends upon the effect which, according to the principles and usages of a court of equity, an appeal has upon the proceedings and decree of the court appealed from, and the doctrines which apply to a supersedeas can only be brought in by way of analogy. In England until the year 1772 an appeal from a decree or order in chancery suspended all proceedings; but since that time a contrary rule has prevailed there. The subject was reviewed by the house of lords in 1807, and an order was made establishing the right of the chancellor to determine whether and how far an appeal should be suspensive of proceedings, subject to the order of the house on the same subject. See Palmer, Pr. H. L. 9, 10; 15 Ves. 184; 3 Paige, 383-385. In this country the matter is usually regulated by statute, or rules of court, and generally speaking an appeal, upon giving the security required by law, (when security is required,) suspends further proceedings, and operates as a supersedeas of execution. This, as we have seen, is the case in the circuit courts of the United States. But the decree itself, without further proceedings, may have an intrinsic effect which can only be suspended by an affirmative order either of the court which makes the decree, or of the appellate tribunal. This court, in the Slaughter-house Cases, 10 Wall. 273, decided that an appeal from a decree granting, refusing, or dissolving an injunction does not disturb its operative effect. Mr. Justice CLIFFORD, delivering the opinion of the court, said 'it is quite certain that neither an injunction nor a decree dissolving an injunction passed in a circuit court is reversed or nullified by an appeal or writ of error before the cause is heard in this court,' and held that the same rule applies to writs of error from state courts in equity proceedings; and the decision of the court was based upon that view of the law. It was decided that neither a decree for an injunction nor a decree dissolving an injunction was suspended in its effect by the writ of error, though all the requisites for a supersedeas were complied with. It was not decided that the court below had no power, if the purposes of justice required it, to order a continuance of the status quo until a decision should be made by the appellate court, or until that court should order the contrary. This power undoubtedly exists, and should always be exercised when any irremediable injury may result from the effect of the decree as rendered; but it is a discretionary power, and its exercise or non-exercise is not an appealable matter. In recognition of this power, and for the purpose of facilitating its proper exercise in certain cases, on appeals from the circuit courts, this court by an additional rule of practice in equity, adopted in October term, 1878, declared that—— 'When an appeal from a final decree, in an equity suit, granting or dissolving an injunction, is allowed by a justice or judge who took part in the decision of the cause, he may, in his discretion, at the time of such allowance, make an order suspending or modifying the injunction, during the pendency of the appeal, upon such terms as to bond or otherwise as he may consider proper for the security of the rights of the opposite party.' Rule 93. Of course, where the power is not exercised by the court, nor by the judge who allows the appeal, the decree retains its intrinsic force and effect. Applying these principles to the present case, it is clear that the force of the decree was not affected by the appeal, although it was in the power of the special term to have continued the injunction and to have retained the fund in its control in the hands of the receiver had it seen fit to do so. Judging only from what appears in the record, we cannot refrain from saying that, in this case, the latter course would have been eminently proper. It would have protected all parties and produced injury to none. But if the court failed to do what it might properly have done, such failure ought not to be visited upon the receiver, who was the mere instrument and hand of the court, and subject to its order. It was his duty to obey the decree as made. This disposes of the case, and requires that the decree appealed from should be affirmed; and it is so ordered.

108.US.243

In May, 1870, Congress authorized the Washington Market Company to construct a market building on a tract in Washington between Pennsylvania and Louisiana avenues and B street, and between Seventh and Ninth streets, then belonging to the United States, and to occupy the same for a term of 99 years, paying a rental therefor to the city of Washington of $25,000 a year. Buildings were to be constructed thereon by the company, within a period named and in accordance with specified plans. In 1871, some changes were made in the plans, and in March, 1873, no building having been erected, Congress authorized the governor and ooard of public works of the District of Columbia (the successor of the city), to erect a building for District offices and to "make arrangements to secure sufficient land fronting on Pennsylvania avenue between Seventh and Ninth streets." Under this authority the market company conveyed to the District a part of the tract described in the act of 1870; the District assumed the obligations of the company respecting that part, and released it on the payment of an agreed sum from liability for back rents, and from the obligation to pay in future any other rental than $7,500 a year; and the company paid the back rents and bound itself to pay the newly agreed rental for the future; and has paid rent since then at the rate of $7,500 per annum. On suit by the District to recover at the rate of $25,000, Hedd, 1. That the act of 1873 fully empowered the District and the company to make the new agreement, transferring a part of the land to the District and diminishing the rent for the remainder. 2. That there was nothing in the act of 1870 which established an irrevocable charitable trust for the benefit of the poor of Washington. 3. That in this case the debates on the passage of the act are not to be accepted as evidence of the meaning of the clause in controversy.

We see no ground of support for the suggestion of counsel that congress, by the act incorporating the Washington Market Company and fixing the terms for their use of the public property granted to them, established an irrevocable charitable trust for the poor of Washington City, and thereby disabled itself from authorizing any subsequent changes in the mode and conditions of that grant; nor are we willing to accept the debates that are reported as occurring in congress at the time of the passage of the deficiency appropriation act of March 3, 1873, as evidence of the meaning of the clause on which the controversy in this case depends. The question is whether, according to its correct construction, that clause authorized the parties to execute the agreement into which they entered. Upon a consideration of the language of the provision, it becomes apparent that the sum of money appropriated by it as compensation to the District of Columbia, for its interest in the city-hall building, was to be applied only for the erection of a suitable building for the district offices. No part of it could lawfully be expended in the purchase of land for a site. It is equally plain that no public lands belonging to the United States were granted to be used for that purpose. Express authority is given to the governor and board of public works to make arrangements to secure land fronting on Pennsylvania and Louisiana avenues, between Seventh and Ninth streets, if they deem it advisable, for that purpose. It is not denied that, in connection with the express declaration that no right to use any public ground was thereby granted, this description necessarily covered a portion of the real estate granted to the market company by their act of incorporation. Any arrangement to secure it as a site for the district buildings must necessarily be made with them. And power granted to the authorities of the District of Columbia to make such an arrangement also carried with it power on the part of the market company to become parties to it. The fact that the latter are not expressly named is without legal significance. The designation of the property was also the designation of its owner. It is evident, also, that the arrangement authorized to be made was described as intended to have the effect of securing the land for the purpose. This necessarily implied that the arrangement, when made as authorized, should be final. The suggestion that it was intended to be preparatory and preliminary only, as the basis of a report to be made afterwards to congress for its approval and ratification, finds no warrant in the context, and is quite clearly negatived by the terms in which the act repels the idea that the arrangement to be made should in any way commit the United States to any liability to pay for any expenditures, either for the land itself or the improvements to be made upon it. It is, therefore, clearly to be inferred that the arrangement intended was to be made with the market company for a designated portion of their land, and that it must be effected without the outlay of any money. This could be accomplished in but one way. It was to induce the market company to relinquish their right to the exclusive use of the specified portion of their land, upon the basis of some modificacation of the terms upon which it was held. As these embraced payments of money, which the market company were under obligation to pay to the District of Columbia, and which the government of the district had exclusive power to administer for the purposes described in the act, it follows that it must have been intended to authorize such an arrangement in respect to these obligations of the market company as would furnish to the latter a consideration and inducement for a release of a part of their property. And no consideration for the release of a part of demised property is more suitable to the nature of the relation between the parties than an equitable or agreed apportionment of the rent. Such was the form and substance of the arrangement in question. The adjustment of the arrearages of rent was a legitimate incident, whether the prior agreement for a reduction of the amount from $25,000 to $20,000 was lawful, at the time it was first made, or not. It became so by becoming part of the arrangement finally entered into. Whether other provisions of the arrangement, not brought into this controversy, such as the provision relating to the maximum of taxes thereafter to be assessed, and in respect to the rental of stalls to be charged to occupants in the market-house building, are lawful and binding, it is not necessary to decide, as they are not proper matters of consideration in the present action. We are of opinion that there is no error in the record of this judgment, and it is accordingly affirmed.

106.US.487

1. The act of the legislature of West Virginia, of Dec. 15, 1868, c. 118, authorizing the city of Parkersburg to issue its bonds for the purpose of lending the same to persons engaged in manufacturing, is invalid, and the bonds issued under it are, as against the city, void. 2. As the consideration for bonds to the amount of 5'20,000, issued by the city to Al., under that act, he, to secure the payment to the city of the semi-annual interest on .$20,000, and of annual instalments on the principal, conveyed to J., as trustee, certain real estate and personal property, with a power of sale in case of default. The bonds were payable to M. or order. He indorsed them in blank and sold them to A. and B., who bought them for value, in good faith. M. paid one instalment of interest on them to the city. The latter made five payments of interest. It then took into its possession the property, and refused to make further payments. A suit in equity was instituted by the holders of the bonds against the city, but was not brought to a hearing for nearly three years. M., although a party thereto, made no defence. The bill prayed for a receiver of the property, but none was applied for; and the city having been allowed with reasonable discretion, in taking care of it and disposing of some of it. Held, 1. The bonds are void because the necessary amount to pay them and the interest thereon was to be raised by taxation, which, not being for a public object, the Constitution of the State did not authorize, and the legislature had no power to pass the act. 2. Neither the payment of interest on the bonds by the city, nor the acts of its officers or agents in dealing with the property, operate, by way of estoppel, ratification, or otherwise to render the city. liable on the bonds. 3. M. lid a right to reclaim the property and to call on the city to account for it, in disaffirmance of the illegal contract, the transaction being merely malur prohibitum, and the city being the principal offender. Such right passed to the complainants as an incident to the bonds. 4. This court orders a decree to be entered declaring that the city exceeded its lawful powers in issuing the bonds, and that they cannot be enforced as its obligations, and providing for a sale of the remaining property, and for an account, wherein the city is to be credited with the sums it had in good faith paid for the acquisition, protection, preservation, and disposition of the property, and for insurance and taxes, and for interest on the bonds, and to be charged with what it had received, but not with any sum for loss of, or damage to, or depreciation of, the property, and ordering the distribution among the complainants of the net proceeds of the sale and the net, amount of money, if any, remaining in the hands of the city, received from Al. or from the sales by it of any of the property.

On the fifteenth of December, 1868, the legislature of West Virginia passed an act which provided as follows, (chapter 118:) 'Section 1. That the mayor and council of the city of Parkersburg are hereby authorized and empowered to issue the bonds of said city, to an amount not exceeding $200,000, for the purpose of lending the same to manufacturers carrying on business in or near the said city, in the said county of Wood. The said bonds shall run 20 years, and bear interest at the rate of 6 per centum per annum; and they shall be issued upon the recommendation of the followingnamed persons, who shall be considered the trustees of said loan; that is to say, * * * who shall have power to fill all vacancies that may occur in their number. They shall have power to make loans of said bonds to good, solvent companies or individuals on the following terms; that is to say: When persons engaged in manufacturing business shall have invested in their business thirty-five (35) per cent. of the amount proposed to be employed in the business of manufacturing, clear of all liabilities, to be shown to said trustees by affidavits of the applicants, or by other satisfactory evidence, and when such proof is furnished, then said trustees, five members concurring, may lend to such applicants such amounts of said bonds as they may deem proper and judicious, not, however, to exceed 65 per cent. of the capital proposed to be used in manufacturing by the applicant: provided, however, when such loans shall be made, the interest thereon shall be paid by the borrower semi-annually to the treasurer of said city; and 5 per cent. of the principal shall be paid annually to the said city by the borrower, to be placed to the account of the sinking fund of said city, until the several loans are paid in full. The said loans shall be secured by deed of trust or mortgage on real estate, or by other satisfactory security, sanctioned by said trustees. And provided, also, that no bonds shall be issued under this section until a majority of the qualified voters of said city concur in the same, by voting for or against the same, at an election to be held for that purpose.' On the seventeenth of April, 1869, an election was held in the city of Parkersburg, under authority of an ordinance passed by the mayor and city council of said city, 'upon the proposition to suthorize the said city council to issue bonds of the said city to the amount of $200,000, to be loaned to manufacturers under the provisions of said law and said ordinance.' At said election 441 votes were cast in favor of said proposition, and 19 against it. On the sixth of September, 1870, a communication having been received by the city council from M. J. O'Brien & Bro. in regard to the erection of a manufacturing establishment and marine railway within the city limits, it was 'resolved that the council agree, when the trustees of the improvement loan certify that the Messrs. O'Brien & Bro. have satisfactorily secured the bonds loaned to them, and complied with the act of the legislature authorizing the loan of said bonds, that they will release said parties from city taxation on their property, to the amount of bonds invested in the same, not exceeding $20,000: provided, however, the release shall extend so long as the said property shall be used or operated as a manufacturing establishment and marine railway, but not, in any event, to exceed 20 years.' Nothing further was done on the subject until after section 8 of article 10 of the new constitution of West Virginia went into operation on the twenty-second of August, 1872, which was as follows: '(8) No county, city, school district, or municipal corporation, except in cases where such corporations have already authorized their bonds to be issued, shall hereafter be allowed to become indebted, in any manner, or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding 5 per centum on the value of the taxable property therein, to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebtedness; nor without, at the same time, providing for the collection of a direct annual tax sufficient to pay, annually, the interest on such debt, and the principle thereof, within, and not exceeding, 34 years provided, that no debt shall be contracted under this section, unless all questions connected with the same shall have been first submitted to a vote of the people, and have received three-fifths of all the votes cast for and against the same.' On the twenty-second of April, 1873, the city council adopted the following resolution: 'Be it resolved by the mayor and council of the city of Parkersuburg, that, in the event of the firm of M. J. O'Brien & Bro. taking from the city a loan of twenty thousand (20,000) dollars of its bonds, authorized under former resolution, dated September 6, 1870, for manufacturing purposes, and paying punctually the interest thereon and five per cent. (5) of the principal for sixteen years, the said firm be released from any further payments, and the balance of said bonds be paid by the city, and the said M. J. O'Brien & Bro. are released from making a marine railway.' At a meeting of the city council on the thirteenth of May, 1873, the trustees of said loan made a report, showing that they had adopted the following resolution: 'Whereas, M. J. O'Brien and W. S. O'Brien, composing the firm of M. J. O'Brien & Bro., are desirous of obtaining a loan of the bonds of the city, under and by authority of an act of the legislature of West Virginia, passed December 15, 1868, for manufacturing purposes, to the amount of $20,000, for the purpose of aiding them in the erection of a foundry and machine works in the city of Parkersburg; and whereas, for the purpose of erecting these works, they have bought of Mrs. Joanna Wait, widow of Walton Wait, deceases, and also from her as the guardian of Bettie C. Wait, infant heir of Walton Wait, deceased, lot No. 80 in said city of Parkersburg, on Kanawha street, being 85 by 170 feet, and have received a conveyance from her of said lot, both as the widow of said Walton Wait and as the guardian of said Bettie C. Wait; and whereas, it appears, by a schedule of personal property of said M. J. O'Brien & Bro., verified by affidavit, and now in the hands of the city attorney, that said M. J. O'Brien & Bro. are the owners of $15,000 worth of personal property in their works at Volcano, free of incumbrance, we, therefore, recommend to the city council of the city of Parkersburg, upon the said M. J. and W. S. O'Brien and their wives executing a deed of trust to the said city on the said $15,000 worth of personal property, as well as upon the said lot No. 80, the city council to take from Mrs. Joanna Wait, or some one for her, bank stock, with power of attorney to dispose of the same, or solvent bonds, to the amount of $15,000, as security that said Joanna Wait, guardian, will obtain from the circuit court of Wood county, within two years, authority to convey to M. J. and W. S. O'Brien the said lot No. 80, for and on behalf of said ward, and when said authority is obtained, and said deed made, said stock or bonds to be given up, then the city council may deliver to said M. J. and W. S. O'Brien, upon the deposit of the aforesaid collaterals, $10,000 of said city bonds; and when said M. J. and W. S. O'Brien have put a building or buildings on said lot ready for the roof, costing not less than $8,000 when completed, shown by bills rendered and authenticated for same to the council, and when said Joanna Wait, guardian of said Bettie C. Wait, by the authority of the said circuit court of Wood county, has conveyed for and on behalf of her said ward the said lot No. 80, free of incumbrance, to said O'Brien & Bro., or made a further deposit of bank stock or bonds to the amount of $8,000, under the conditions aforesaid, as security that she will obtain such authority within two years from the date hereof, and make said conveyance, which shall be held by said city as security for the payment of said bonds and interest until said deed is made by authority of said court, then said city council may deliver to said M. J. O'Brien & Bro. the remaining $10,000 of said bonds; and said city council shall take as a further security for the payment of said bonds and interest, from said M. J. O'Brien & Bro., to be deposited with the city treasurer, their insurance policies, amounting to $14,500, transferred to the said city, on their machinery, stock, etc., at Volcano; and when their buildings on said lot are completed, and the machinery thereon erected, then the said M. J. O'Brien & Bro. shall have the whole insured to the amount of $15,000, and keep the same so insured for the benefit and security of said city on account of said loan.' At the same time the city attorney presented to the council a trust deed executed by 'said O'Brien & Bro.,' which was accepted, and it was resolved 'that, upon the execution of the trust by M. J. O'Brien & Bro., the clerk is authorized to issue immediately $10,000, part of city bonds, as agreed upon by the resolution of the twenty-second of April, 1873.' The trust deed, which was executed by the two O'Briens and their wives, and acknowledged by them on the thirteenth of May, 1873, and recorded on the eighteenth of June, 1873, was in these words: 'This deed, made the thirteenth day of May, A. D. 1873, by M. J. O'Brien and P. F. O'Brien, his wife, and W. S. O'Brien and Jane C. C. O'Brien, his wife, parties of the first part, and Okey Johnson, trustee, party of the second part, witnesseth, that for and in consideration of one dollar in hand paid by the said trustee to the parties of the first part, the receipt whereof is hereby acknowledged, the said parties of the first part hereby grant unto the party of the second part all, etc., of the following property, to-wit: All that certain lot of ground situate on Kanawha street, in the city of Parkersburg, known as lot No. 80 on the plat of said town, and being the same lot conveyed by Joanna M. Wait, guardian of Betty C. Wait, and Joanna M. Wait in her own right, to the said parties of the first part, by deed dated the twelfth day of May, 1873, and all the personal property mentioned in Schedule A, and hereunto annexed and made part and parcel of this deed, said property now situated at Volcano, in the county of Wood, and valued at $15,040.38, which said lastnamed property is permitted to remain in the possession of the parties of the first part, and to be removed from Volcano aforesaid and placed in the building or buildings to be erected by said parties on the lot aforesaid, until the same shall be required by the parties of the second part, upon being made as hereinafter specified; that is to say: Whereas, an act passed December 15, 1868, by the legislature of West Virginia, authorizing the mayor and city council of the city of Parkersburg to lend its bonds for manufacturing purposes, to which act reference may be had for a more explicit understanding of the provisions; and whereas, the parties of the first part have negotiated with the said city for a loan of its bonds to the amount of $20,000, according to the provisions set forth in an ordinance passed by the said city council the twenty-second day of April, 1873, whereby it is, among other things, provided that if the parties of the first part shall punctually pay the interest on the aforesaid sum of $20,000, and 5 per centum of the principal for 16 years, the said parties of the first part shall be released from any further payment, which said ordinance was authorized under a former ordinance, dated September 6, 1870, to both of which ordinances reference may be had for a fuller understanding thereof, and are made part hereof, which negotiation for the aforesaid loan of $20,000 of the bonds of the said city is made on the part of said city pursuant to a recommendation in writing made by the trustees of said loan, as provided in said of the legislature, to which recommendation in writing reference may be had for a fuller understanding thereof, and is made part hereof, in trust to secure the faithful performance by the parties of the first part in their payment of the aforesaid interest on said $20,000, and the payment of the 5 per centum of the principal, as specified in the aforesaid ordinance passed the twenty-second day of April, 1873. And if any default shall be made herein, then the party of the second part, as trustee aforesaid, shall proceed to sell the property hereby conveyed pursuant to the provisions of chapter 72 of the Code of West Virginia, and the acts amendatory thereto.' Exhibit A, annexed to the trust deed, contained a list by items of the personal property, with a valuation opposite each item, the same being principally machinery and tools. Attached to it was an affidavit made by M. J. O'Brien, setting forth that M. J. O'Brien & Bro. owned all the property free of incumbrance, and that each item was worth the sum set down opposite to it, and that the whole was then worth $15,000. On the tenth of June, 1873, an order was adopted by the council, reciting the statute, and the election, and the prior proceedings of the trustees of the loan and of the council, and the presentation of the deed of trust and the deposit of the $5,000 security, and of the insurance policies before provided for, and then ordered that the said security was satisfactory, and that $10,000 of the bonds of the city be delivered to M. J. O'Brien & Bro. 'forthwith, under the conditions of and in accordance with' the said act 'and the orders made September 6, 1870, and April 22, 1873, made and intended to be made by authority of said act of legislature, and to be controlled by and construed according to its provisions,' and further ordered that when Mrs. Wait should make the deed to lot No. 80, the $5,000 security should be given up. Thereupon $10,000 of the bonds were delivered to the O'Briens. Each bond was a certificate of indebtedness for $500, payable to M. J. O'Brien & Bro., or order, dated June 1, 1873, sealed with the seal of the city and signed by the mayor and the clerk, payable June 1, 1893, at Parkersburg, with interest at the rate of 6 per cent. per annum, payable semi-annually, June 1st and December 1st, in the city of New York. Coupons payable to bearer for each payment of interest were attached. Each bond contained this statement: 'This certificate is issued by authority of the act of the general assembly of the state of West Virginia, passed December 15, 1868.' On the ninth of September, 1873, the city council passed the following order: 'It appearing to the satisfaction of the council that M. J. O'Brien & Bro. have their buildings, which, when completed, will cost more than $8,000, now up and ready to be roofed, and have therefore complied with the recommendation of the manufacturers' loan, and the former orders of the council in that respect, it is ordered that as soon as Mrs. Joanna Wait, or some one for her, shall deposit with the city treasurer bonds to the amount of $8,000, or bank stock, with power of attorney to dispose of the same, as collateral security that she will obtain within two years from the thirteenth of May, 1873, the authority from the circuit court of Wood county to make for and on behalf of her ward, Bettie C. Wait, a deed to said M. J. O'Brien & Bro., for lot No. 80 in the city of Parkersburg, that the mayor of the city of Parkersburg is directed to deliver, properly signed by himself and attested by the clerk of the council, the remaining ($10,000) ten thousand dollars of the bonds of the city of Parkersburg, as provided for by former orders of this council.' The second lot of $10,000 of the bonds were thereupon issued to M. J. O'Brien & Bro., the bonds being in the same form as the others. No other proceedings of the city council appear as to the issuing of the bonds. The bonds were all of them indorsed in blank by M. J. O'Brien & Bro., and were sold by them at 80 cents on the dollar,—$10,000 in June, 1873, and $10,000 in September, 1873. The appellees are the owners of the entire $20,000 of bonds, and are bona fide holders of them. The O'Briens paid to the city the $600 of interest falling due December 1, 1873, and the city paid the coupons due that day. The O'Briens paid no more. The city paid the coupons which fell due in June and in December, 1874, and in June and December, 1875. It paid no more. The coupons which fell due June 1 and December 1, 1876, not having been paid, the plaintiff, Isabella Brown, owning $5,000 of the bonds, filed this bill on behalf of herself and all other holders of the bonds who should unite in the suit, setting forth the said act of December, 1868, the election, the action of the trustees of the loan and of the city council, the giving of the security, the execution and recording of the deed of trust, and the issuing of the first $10,000 of bonds. Her $5,000 of bonds are part of those bonds. The bill sets forth the proceeding for the issuing of the rest of the bonds and their actual issue. It avers that the holders of all of the bonds are bona fide holders for value. The defendants in the suit are the city of Parkersburg, the two O'Briens and their wives, and the assignee in bankruptcy of the O'Briens. In November, 1873, the O'Briens and their wives executed to said Johnson a deed for said lot No. 80 and for another lot, in trust to secure one Leach for his indorsement of a promissory note of the O'Briens for $3,000, with power to sell the land in case the note should not be paid. On the ninth of November, 1874, Johnson sold lot No. 80 and its appurtenances at auction, under said last-named trust deed, to the city of Parkersburg, and on the eighth of December, 1874, executed to the city a deed of it, which recited that the sale of the lot was 'subject to a trust thereon in favor of the city of Parkersburg for $20,000,' and that the sale was for $300, and conveyed the lot and its buildings and appurtenances to the city, 'subject to the lien of the said city aforesaid.' The bill sets forth said sale and conveyance, and avers that the city has, since said purchase, claimed said real estate as being its property, and has rented it, and is now claiming it and exercising to some extent rights of ownership over it; that after the deed from the O'Briens to Johnson was executed they were adjudged bankrupt, and their assignee in bankruptcy was permitted, without objection on the part of the city, to take possession of the movable tools and machinery covered by said deed; that said chattels were sold by said assignee to various purchasers, and became scattered and deteriorated in value; that some were sold subject to the claim of the city, and others without such reservation; that the city continued to pay the interest on the bonds until the maturity of the coupons, which became due June 1, 1876, when it refused to pay them, and has paid no more, and refuses to recognize the obligations of the bonds and coupons, on the ground that they were issued by the city without lawful authority; and that the city has neglected the real estate and the improvements and fixed machinery on it, and the buildings are unoccupied and unprotected, lying open to the weather and to depredations, and no care is used in protecting the buildings and the machinery, and many valuable parts of the machinery have thus been lost. The bill alleges that the deed of trust to the city was executed for the purpose of securing the holders of the bonds and coupons, and they are the parties beneficially interested in the same, and the city is a trustee of all the property mentioned in the deed, for the holders of the bonds; that the city was* bound to care for the property and protect the title to it for the benefit of the cestuis que trust, and especially as it had induced them to purchase the bonds, as well in reliance on the deed as on the credit of the city; that the city was, as trustee, bound to interpose to prevent the sale of the chattels by the assignee in bankruptcy, and to place the property in the charge of a responsible custodian, and protect it from depredation, and that, in failing to exercise such care and in permitting such sale, the city has violated the duties assumed by it from its acceptance of the deed, and has become liable to account to the holders of the bonds for all the loss and injury which has occurred to said real estate and chattels by reason of such neglect; and that the owners of the bonds are entitled to the interposition of a court of equity for the care and protection of the property, and to a decree for the sale of such of it as remains upon the premises mentioned in the deed to the city, and for the sale of the real estate, and a decree against the city requiring it to account for and pay over to the holders of the bonds all such moneys as have been lost to them from such neglect, and to pay to them any balance which may remain due to them after applying all sums which may result from such sales and accounting. The prayer of the bill, as originally filed, is for the appointment of a receiver to take charge of the property, and the appointment of a trustee to make sale of it, and the distribution of the proceeds of sale among the owners of the bonds and coupons, and that the city account for and pay over to them the value of the chattels so lost or sold, and for such loss as has resulted by reason of such neglect of duty on the part of the city in the care of the property, and the rents and profits received by the city from the property, and that the city and the O'Briens pay to the owners of the bonds any deficiency in the principal and interest thereof which may remain after the payment of the sums resulting from the sales and The city answered the bill, setting up various defenses. One is that a majority of the qualified voters of the city did not vote at said election in favor of authorizing the issuing of bonds under the act of 1868. Another is that the voters voted on the question of authorizing the issue of bonds generally under the act, and not on the question of issuing the particular bonds. Another is that the issuing of said bonds had not been authorized prior to the twenty-second of August, 1872, when said section 8 of article 10 of the new constitution of West Virginia became operative; that said section governed in the issuing of said bonds; and that they were issued in violation thereof, in that the payment thereof was not provided for at the time of the issuing thereof, as required by said section, and all questions connected with the same were not first submitted to a vote of the people, as therein required, and said bonds are void. Another is that the act of 1868 was in violation of the constitution of the state. Another is that at the time of the passage of said act the city had, and now has, no property out of which it could pay any such bonds, except such funds as it is or may be authorized by law to raise by taxation. Another is that the bonds were issued in aid of a private enterprise, for individual profit, and not for a public purpose; that it is in excess of the constitutional power of the legislature of the state to authorize taxation for the purpose of paying said bonds, unless that power was clearly conferred on it by the constitution of the state; that no such power was conferred on it by the constitution of the state in force at the time of the passage of said act or the one now in force; that the said act is void for want of power in the legislature to pass it; and that the bonds issued under it are void. Another is that the bonds are void because they were issued in violation of section 9 of article 10 of the constitution of the state in force at the time they were issued, which provides that the legislature may, by law, authorize the corporate authorities of cities to assess and collect taxes for corporate purposes; that said provision amounts to a prohibition against assessing and collecting taxes for any other than a corporate purpose; and that said bonds, being issued for a private and not for a corporate purpose, are void. The answer alleges that if any property covered by the deed of trust was sold by the assignee in bankruptcy, it was sold by him subject to said deed of trust. It denies the allegations of the bill as to the neglect of the city to protect and care for the buildings and machinery. It avers that it is not chargeable with the care of the property, but that it has taken as good care of the same as was possible under the circumstances, and has used all due diligence to rent it. It denies that the deed of trust was executed to secure the holders of the bonds and coupons, and denies that the city was or is a trustee for them of the property covered by the deed, and denies that it induced any person to take the bonds. It avers that it is not competent for the city to act as trustee in such a matter, wholly foreign to the purpose of its creation; that it has paid out, as interest on the bonds and expenses attending the issuing of them, and taxes on the property, more than it has received from all sources on account of the property; and that the plaintiff has a plain and adequate remedy in a court of law. It denies the right of the complainant to any decree against it for any sum in any event, whether the court shall deem the complainant entitled to a sale of the property mentioned in the deed of trust or otherwise. Finally, the answer says that if the court shall be of opinion that it has any jurisdiction in the premises, or that the complainant is entitled to resort to the property for the payment of the bonds or the interest thereon, the city is willing to submit to any order to be made by the court in relation to the disposition of the property, upon the court pronouncing the bonds void and the city not liable on account thereof, but it prays that in any order to be made the city may be decreed to receive out of the proceeds of any sale of the property the sum it has so expended above its receipts. The bill was taken as confessed as to all the defendants except the city. The holders of all the bonds were made parties complainant. Proofs were taken on both sides. The bill was then amended so as to aver also that the city is estopped, by her conduct, to deny the validity of her indebtedness according to the tenor and effect of the bonds and coupons, and so as to add to the prayer for relief the following: 'or that the said city of Parkersburg may be decreed to pay the said bonds and coupons according to the tenor thereof, and especially that a decree may be passed for the payment of the overdue coupons upon the said bonds.' The bill was further amended so as to allege that even if the city was not chargeable as trustee from the time of the execution of the deed of trust, it is chargeable with all the duties and liabilities of a trustee, in regard to all of the property, from therespective times at which it actually took possession of the same; and the grantee in the deed of trust was made a defendant and appeared. The case was brought to a hearing, and a decree was made, which states that the court is of the opinion that the city is indebted for the bonds and coupons and is responsible for their payment according to their tenor and effect; that the $20,000 of bonds are held by the several complainants in amounts severally specified, and that there are due to them severally certain specified sums for interest coupons due and unpaid upon the bonds, (being interest from and including June 1, 1876, to and including June 1, 1879,) with interest from the date of the decree; and then decrees that the complainants are entitled to have the bonds held by them respectively paid by the city at the maturity of the same, with interest payable at the times and in the manner stated in the interest coupons attached to the bonds, and that the complainants respectively recover against the city for the several sums so set out as due for interest on the bonds, and interest on the same from the date of the decree, and costs, and have execution therefor. From this decree the city has appealed to this court. The bill, as filed, asked for equitable relief, and sought to charge the city as a trustee and to reach the property covered by the deed of trust. The relief granted by the decree was a simple money judgment against the city for the interest due on the bonds at the date of the decree, based on the legal liability of the city to pay the bonds and coupons. For this there was a plain, adequate, and complete remedy at law, in each bondholder, if the city was thus liable. So that the decree made could not be sustained, in any event. But we are of opinion that, within the principles decided by this court in the case of Loan Association v. Topeka, 20 Wall. 655, the bonds in question here are void. The act of 1868 authorizes the bonds to be issued as the bonds of the city. The principal and interest are to be paid by the city. The bonds are to be lent to persons engaged in manufacturing. Those persons are to pay the interest on the 'loans' semi-annually to the treasurer of the city, and are also to pay annually to the city 5 per cent. of the principal, to go into the sinking fund of the city, till the 'loans' are paid in full. No fund is provided or designated out of which the city is to pay the principal or interest of the bonds. What the 'borrower,' as the acts calls him, is to so pay to the city, is not such a fund. The city is to pay the principal and interest of the bonds, according to their tenor, whether the 'borrower' pays the city or not. No other source of payment being provided for the city, the implication is that the city is to raise the necessary amount by taxation. It has, by section 15 of the act of March 17, 1860, authority to levy and collect an annual tax on the real estate and personal property and tithables in the city, and upon all other subjects of taxation under the revenue laws of the state, which taxes are to be for the use of the city. A legitimate use of the moneys so raised by taxation is to pay the debts of the city. Taxation to pay the bonds in question is not taxation for a public object. It is taxation which takes the private property of one person for the private use of another person. There is, in the act of 1860, a provision that the tax shall not exceed a given percentage of the assessed value of the property, or so much on every tithable, but it does not appear that a tax for these bonds would exceed the limit. Therefore, the inference that it was intended, by the act of 1868, that such taxation as should be necessary to pay the bonds should be resorted to, must remain in full effect. There was no provision in the constitution of West Virginia of 1862 authorizing the levying of taxes to be used to aid private persons in conducting a private manufacturing business. This being so, the legislature had no power to enact the act of 1868. There having been a total want of power to issue the bonds originally, under any circumstances, and not a mere failure to comply with prescribed requirements or conditions, the case is not one for applying to the city, under any state of facts, any doctrine of estoppel or ratification, by reason of its having paid some installments of interest on the bonds, (Loan Association v. Topeka, ubi supra,) or by reason of any of the acts of its officers or agents in dealing with the property covered by the deed of trust. No such acts can give validity to the statute or to the bonds, however they may affect the status of the property dealt with or the relation of the city to such property. But it is contended by the appellees that, independently of the original validity of the bonds, the city is liable to pay them, because it misled and prejudiced their holders and prevented them from resorting to the security, or because it received the full value of the bonds in consideration of paying them. It is urged that if the bonds were void the city had no right to meddle with the security. There has, however, never been any impediment to a resort by the holders of the bonds to proceedings to have the property covered by the deed of trust administered for and appropriated to their benefit, as representing the O'Briens, in respect to such property, and as subrogated to the rights of the O'Briens to have the property devoted to the payment of the principal and interest of the bonds, in view of their being void. The only misleading or prejudice was that the holders of the bonds, mistaking the law, supposed them to be valid obligations of the city. As to the receipt of property by the city, it received certain property, but it did not thereby enter into any obligation, even if it could have done so, to pay these bonds. The evidence shows that the city has endeavored, in proper way and with a due regard to the interests of the O'Briens and of those interested under the O'Briens, to preserve and protect the property and realize from it as much as could be realized. The bill in this case was filed in December, 1876. The case was heard in September, 1879. The bill prayed for a receiver of the property, yet none was appointed or applied for, so far as appears. The sales by the city of movable property, which are complained of, took place after this suit was brought. The plaintiffs have chosen to leave all the property in the hands of the city up to this time. The city has acted in good faith, and with reasonable discretion, in regard to the property, throughout. No valuation placed upon the property, real or personal, or any part of it, by way of estimate or opinion, at the time the city took possession of it, or at any time since, can be taken, on the evidence in this case, as the measure of any liability of the city on the bonds or in respect of the property. Neither the O'Briens nor the plaintiffs interposed to control the property, but left the city to control and manage it. There are not about the acts of the city, in regard to the property, any elements which can constitute the city a trustee of the property, with the duties imposed on a trustee. No trust arose in favor of the plaintiffs out of the deed of trust to Johnson. The trust thereby created was one to secure the payment by the O'Briens to the city of the interest on $20,000 and of the principal of that sum. The plaintiffs could not enforce that trust in the place of the city. It was a void trust, because the consideration of it was the issuing of the void bonds. Nor did the purchase by the city of the property which it bought subject to the trust validate the original trust or create a new one. But, notwithstanding the invalidity of the bonds and of the trust, the O'Briens had a right to reclaim the property and to call on the city to account for it. The enforcement of such right is not in affirmance of the illegal contract, but is in disaffirmance of it, and seeks to prevent the city from retaining the benefit which it has derived from the unlawful act. 2 Comyn, Cont. 109. There was no illegality in the mere putting of the property by the O'Briens in the hands of the city. To deny a remedy to reclaim it is to give effect to the illegal contract. The illegality of that contract does not arise from any moral turpitude. The property was transferred under a contract which was merely malum prohibitum, and where the city was the principal offender. In such a case the party receiving may be made to refund to the person from whom it has received property for the unauthorized purpose, the value of that which it has actually received. White v. Franklin Bank, 22 Pick. 181; Morville v. American Tract Society, 123 Mass. 129; Davis v. Old Colony Railroad, 131 Mass. 258, 275, and cases there cited. The O'Briens having indorsed and sold the bonds, the holders of the bonds succeeded to such right of the O'Briens as an incident to the ownership of the bonds. The O'Briens suffered the city to take possession of and administer the property. They were made parties to this suit originally and have made no defense to it. The right which the plaintiffs so have to call on the city to render an account of the property is one which can be properly adjudicated in this suit in equity. It involves the taking of an account, the sale under the direction of the court of what remains of the property, and the ascertainment of the proper charges to be allowed to the city against the moneys it has received and against the proceeds of sale. There can be no doubt that the city is entitled to be credited the sums it has paid in good faith to acquire, protect, preserve, and dispose of the property, and for insurance and taxes, and the amount it has paid in paying the coupons it has paid, and that it is to be charged with what it has received. But it is not to be charged with any sum for loss of or damage to or depreciation of the property. The remaining property must be sold under the direction of the court below, and an account be stated on the foregoing principles, and the net proceeds of the sale and the net amount of money, if any, in the hands of the city, must be distributed among the plaintiffs. The decree of the circuit court must be reversed, with costs, and the case be remanded to that court, with instructions to enter a decree declaring that the city, in issuing the bonds, exceeded its lawful powers, and that they cannot be enforced as obligations of the city, and providing for a sale of the remaining property, real and personal, under the direction of the court, and the taking of an account between the city and the property on the basis stated in this opinion, and the application in conformity with this opinion of the net proceeds of the sale and of the net amount of money, if any, remaining in the hands of the city received from the O'Briens, or from the sales by it of any of the property received by it, and for such further proceedings in the case as may be in conformity with this opinion. We have not deemed it necessary to consider the question whether the bonds were void as having been issued in violation of section 8 of article 10 of the constitution of West Virginia of 1872, or the question whether the act of 1868 required a vote by the voters of the city on each loan of bonds to be made, or the question whether the act of 1868 was observed in other respects in issuing the bonds.

109.US.211

A executed a promissory note to B, another to C, and two others to D, and secured all by a mortgage of real estate in Louisiana. The notes to D were paid at maturity. Default being made by the others, B obtained a decree for foreclosure of the mortgage, and the property was sold to H. E, being unable to pay the purchase money, agreed in writing with the holders for time, and that the parties might enforce their judgments in case of non-payment, and that the original mortgages should remain in full force and effect, and that they were recognized as operating on the property to secure the debts. This agreement was recorded in the record of mortgages. E then conveyed to F, who mortgaged to G. The debt to B nbt being paid on the expiration of the extension, B instituted proceedings to foreclose, treating the agreement as a mortgage, and made G a party defendant. Held, That the agreement was not a mortgage; that to constitute a mortgage there, must be a present purpose to pledge the estate, and that there was no such purpose at the time of the agreement. *

It is conceded by counsel for complainant that the original mortgage made by Tucker Brothers, dated February 24, 1860, and the decree rendered thereon in favor of the Bank of New Orleans by the district court of the parish of La Fourche, in June, 1867, were both extinguished by the sale of the mortgaged premises to Cummings on September 7, 1867. But complainant insists that the agreement made by Cummings on the day last named, with the Bank of New Orleans and other parties entitled to the proceeds of the sale, constituted a mortgage, and that the same having, on September 12, 1867, been recorded in the office of the recorder of mortgages for the parish in which the lands were situate, secured them a lien and privilege on the premises from the date of said record. We are of opinion that this contention is not well founded. While it may be conceded that no precise form of words is necessary to constitute a mortgage, yet there must be a present purpose of the mortgagor to pledge his land for the payment of a sum of money, or the performance of some other act, or it cannot be construed to be a mortgage. Wilcox v. Morris, 1 Murph. 116; S. C. 3 Amer. Dec. 678. The agreement of September 7, 1867, does not, on its face or by its terms, profess to create a lien in favor of the Bank of New Orleans on the premises in question, but it recites that the parties thereto do not thereby impair, affect, or novate their existing claims; that the original mortgages and privileges remain in full force and are recognized as operating on said property 'to secure the debts stated as aforesaid with the rank above stated.' The agreement is not of doubtful meaning. Its purpose is to recognize the old mortgage made by Tucker Brothers in 1860, and to preserve its lien on the mortgaged premises from the date of its inscription. The contention of complainant is not that the agreement is a mortgage to secure the notes made by Tucker Brothers, but to secure from Cummings the price which he bid for the premises at the sale made to satisfy the mortgage executed by Tucker Brothers. The bill of complainant is framed upon this theory; but the fault of this theory is that the agreement does not profess, of its own force, to secure the money due from Cummings, but excludes the idea that such is its purpose by declaring that the original mortgages are recognized as operating on said property to secure the sums due from Cummings. It is perfectly clear, therefore, that the agreement of September 7, 1867, was not intended by the parties as a new mortgage to take effect at that date, but as a recognition of the old mortgage, and that its purpose was to keep it alive and to preserve its lien as of the date of its inscription. In other words, Cummings, by this agreement, undertakes to keep alive and in full force a mortgage made by another party after it had been foreclosed, the mortgaged property sold, and the mortgage and the decree rendered thereon extinguished. It was not in his power to do this. It follows that the effect of the agreement of Cummings of September 7, 1867, is simply as a contract to pay the parties entitled to it the purchase money of the premises bought by him, and creates no lien or privilege on the premises sold. In other words, it is not a mortgage. This view is supported by the decision of the supreme court of Louisiana in the case of Adams v. Daunis, 29 La. Ann. 315. This was the proceeding by Adams to cause to be erased the mortgages anterior to his purchase of the premises in question. The agreement of Cummings of September 7, 1867, was put in evidence in that case, and this court held it to be no mortgage. It results from this view that the decree of the circuit court dismissing the bill of complaint was right, and must be affirmed.

109.US.162

Defendants in error issued to A, their bonds with interest coupons attached. A- endorsed to B, and B endorsed to the plaintiff after the bonds were overdue. While the bonds were in B's possession, overdue, B was party defendant in a suit in chancery in a State court in which D, an owner of real estate alleged to be encumbered by a mortgage to secure .payment of the bonds, sought to have them declared invalid ; and party plaintiff to a cross-bill in that suit in which it was sought to have the same 'bonds &1 i,v alid, and the mortgage foreclosed. In these proceedings the bondsyWere adjudged to be invalid for want of authority in the trustees to issue them. During the same period B, as holder of the bonds, applied to the State court for a writ of mandamus to compel the trustees of the township to levy a tax for payment of interest on the bonds. In this suit it was decided that the bonds were issued without legal authority. On these facts: Held, 1. That the general rule that a purchaser of overdue bonds, after judgment rendered that the bonds are void, is bound by that judgment, applies here. 2. That when a mandamus is refused on grounds that are conclusive against the right of the plaintiff to recover in any action whatever, the judgment is conclusive of that fact. 8. When a proceeding in mandamus is used as an action at law to recover money, it is subject to the principles which govern meohey actions. 4. The judgment of the State court that the. bonds were void in the hands of B, is conclusive of that fact in the hands of his vendee and privy in action. 5. If the parties have had a hearing and an opportunity of asserting their rights, they are concluded by final decree so far as it affects rights presented to the court and passed upon, even though all were defendants in the suit, and as between them no issue was raised and no adverse proceedigs had.

This is an action on bonds and interest coupons thereto attached, signed by the trustees of Brown township, payable to the Springfield, Mt. Vernon & Pittsburgh Railroad Company, or its assigns, on the first day of October, 1871, and dated April 20, 1853. The plaintiff says she is the owner and holder of the bonds and coupons, and in explanation of her title alleges that 'after execution and delivery of said note to said railway company as aforesaid, and in the year 1854, the said railroad company did indorse and deliver said note and the coupons thereto attached to Brown, Collins & Brown, and that said Browns, Collins & Brown afterwards indorsed and delivered said note and coupons to Richard B. Hopple, and Richard B. Hopple afterwards indorsed and delivered said note and coupons to the plaintiff, who now holds and owns the same.' The defendants for answer, among other matters, filed two pleas of a former adjudication, in which the bonds were declared to be void, and rely upon these in bar of the action. The first of these pleas, called defense No. 3, sets out a suit by one Hiram Hipple, plaintiff, against the trustees of Brown township, Robert B. Hopple, and others, in which he alleges himself to be the owner of real estate incumbered by a mortgage to secure the payment of the bonds on which the present suit is brought, and that said defendants, among whom was the Richard B. Hopple from whom plaintiff in this suit purchased the bonds aforesaid, asserted a claim to his land on account of said mortgage. The plea further alleges that the holders of the bonds, among whom was Richard B. Hopple, filed their answer and cross-bill alleging the bonds and mortgage to be valid, and pray that the bonds and mortgage might be declared to be valid, and for a decree of foreclosure of the mortgage, and that in said cross-bill said Richard B. Hopple set up as the foundation of his prayer for relief, his ownership of the identical bonds now set forth in this action. In the suit on the mortgage, which was finally appealed to the supreme court of the state, Hopple and the other bondholders failed, and were adjudged to pay costs on the ground of the want of authority in the trustees of Brown township to issue the bonds. To this suit the trustees of Brown township and Richard B. Hopple and other bondholders were parties. The second plea sets forth an application by Richard B. Hopple, in his right as owner of these bonds, for a writ of mandamus from the supreme court of Ohio to compel the trustees of Brown township to levy a tax to pay the interest on said coupons. To the alternative writ the trustees answered, denying the validity of the bonds, and the court decided that the supposed bonds and coupons were issued without any legal authority, and without any authority to take stock in the railroad company to which they were delivered, and gave judgment for costs against said Hopple. The plea also avers that said bonds were not transferred to Annie Louis, plaintiff, until long after said bonds and coupons were due. To these pleas demurrers were filed, and the demurrers overruled, and plaintiff not desiring to reply or plead further, judgment was rendered for defendant. The error assigned by plaintiff is the overruling of these demurrers. We think the court was right, upon the plainest principles of jurisprudence. The case is unembarrassed by the doctrine of bona fide purchaser of negotiable securities, because the bonds were overdue in the hands of Richard B. Hopple when the suit of Hipple against him and others to have them declared void was commenced; the bonds falling due October 1, 1871, and the suit commenced October 18th of that year, and the cross-bill, in which Hopple sought to enforce the bonds, was commenced April 2, 1872. The bonds were therefore past due, during the whole period of that litigation in which they were adjudged to be void in his hands. As regards the action of mandamus, while the bonds were not overdue at the time of the judgment against Mr. Hopple, the plea expressly avers that they were overdue when plaintiff Louis became their owner, and as she alleges in her declaration that she bought them of Hopple, it follows that they remained in his hands from the date of the judgment on mandamus against him until they became past due. This follows, also, from the fact that he asserted ownership of them after they were due in the cross-bill to Hipple's suit. The plaintiff, therefore, holding under Hopple by a purchase made after the bonds were due, and after the judgment in which they were decided to be void in his hands, is bound by that judgment, unless something can be shown which takes the case out of the general rule. In the mandamus case the plaintiff was the owner of the bonds, and the present plaintiff is bound by the privity of a subsequent holder of them. The defendants in that case are the defendants in this, so that the action is now between parties on whom that judgment is binding. The only objection made to this is that while the statute of Ohio makes a judgment on mandamus a bar to another civil action where the writ is granted, it does not so declare where it is refused. The words of the statute are not presented to us, nor any decision of the courts of that state cited to sustain the proposition. It is easy to see why the statute should declare that where a party has had a recovery of what he claims by a writ of mandamus, the other party should not also be harassed by another action for the same demand. But it would not follow that where a mandamus was refused on grounds which were conclusive against the right of plaintiff to recover in any action whatever, that the judgment would not be a protection when such other action was brought. Such was the case before us. The ground of the court's judgment in denying the mandamus was not left to inference, however strong that inference might be from the pleadings, as in the case of Block v. Com'rs, 99 U. S. 686, but the court declared, in the case we are now considering, in positive terms, that 'the said supposed bonds or undertaking and coupons, in the writ mentioned, were issued by the defendants without any legal power or authority, * * * and without any legal power or authority to make said supposed subscription to the capital stock of the railroad company, and that said supposed subscriptions, and said supposed bonds and coupons, are for said reason absolutely void,' and that defendants are not estopped to set up the invalidity of said instruments. Here is not only a denial of the writ of mandamus, but an adjudication that in the hands of Hopple the bonds now in suit were absolutely void. This court has repeately held, since Postmaster General Kendall's Case, 12 Pet. 614, that the proceeding in mandamus is, when appropriate, an action at law to recover money, and is subject to the principles which govern said actions; and in the case of Block v. Com'rs, 99 U. S. 686, the denial of the writ is held to be conclusive in a subsequent action as to the invalidity of the bonds, though the fact that the decision in mandamus was based on that ground is inferred from the pleadings, and not from the express language of the judgment, as in the present case. We are of opinion that the judgment of the supreme court of Ohio established the fact that the bonds and coupons were void in the hands of Hopple, and the judgment is conclusive of that fact against his vendee and privy in this action. The same result must follow in the case of Hipple v. Board of Trustees and Richard B. Hopple and others. It is argued, in avoidance of this conclusion, that the board of trustees and Hopple being both defendants to Hipple's bill, no adversary contention on the question of the validity of the bonds could have taken place between them. But this view of the case ignores entirely the facts that Hopple, in filing his cross-bill seeking to establish the bonds as valid, became plaintiff, and made the trustees defendants, and in this manner raised the issue of their validity between himself and the trustees directly, and it was in express terms decided against him. His assignee of those bonds, in the present action against the same trustees, is clearly bound by that decision. But if there had been no cross-bill, the fact that both Hopple and the trustees were placed as defendants in the suit of Hopple, does not impair the conclusive character of the decree in that case as between those parties. The present case is precisely analogous to that of Corcoran v. Chesapeake & Ohio Canal Co. 94 U. S. 741, and we cannot better express our views of this case than by a quotation from the opinion in that: 'It is said that Corcoran and his co-trustees, the canal company and the state of Maryland, were all defendants to that suit, and that as between them no issue was raised by the pleadings on this question, and no adversary proceedings were had. The answer is that in chancery suits, where parties are often made defendants because they will not join as plaintiffs, who are yet necessary parties, it has long been settled that adverse interests as between co-defendants may be passed upon and decided, and if the parties have had a hearing and an opportunity of asserting their rights, they are concluded by the decree as far as it affects rights presented to the court and passed upon by its decree. It is to be observed, also, that the very object of that suit was to determine the order of the distribution of the net revenues of the canal company, and that the Corcoran trustees were made defendants for no other purpose than that they might be bound by that decree; and, lastly, as the decree did undoubtedly dispose of that question, its conclusiveness cannot now be assailed collaterally, on a question of pleading, when it is clear that the issue was fairly made and was argued by Corcoran's counsel, as is shown by the third head of their brief, made a part of this record by stipulation.' 'It seems to us very clear that the question we are now called on to decide has been already decided by a court of competent jurisdiction, which had before it the parties to the present suit; that it was decided on an issue properly raised, to which issue both complainant and defendant here were parties, and in which the appellant here was actually heard by his own counsel; and that it therefore falls within the salutary rule of law which makes such a decision final and conclusive between the parties, and that none of the exceptions to that rule exist in this case.' We are of opinion that both demurrers were properly overruled, and affirm the judgment of the circuit court. Mr. Justice MATTHEWS did not sit in this case.

109.US.177

A mortgaged real estate to B, 0, and D, including the south half of a fractional section. Two years later B assigned his interest in the mortgage to C and D, and took from A, who was embarrassed, a conveyance of all his property, includingthe other half of the fractional section. This was done to aid'A in disposing of his property, and paying his debts. It was found in the decree below that it was for the joint benefit of B and his co-mortgagees. -The mortgaged property was purchased by C at foreclosure sale. A brought iuit against B, C, D, and others in possession, to redeem all the estate conveyed to B. An accounting showed a balance due A. Execution was ordered directing the defendants to surrender the lands. B and C appealed, giving security for a supersedeas. A applied for a writ of assistance putting him in possession of the north half. The court belowgranted the writ. On application to this court to stay the writ of assistance: Held, that the writ of _peraedea should issue.

This is a motion for a writ of supersedeas to stay the execution of a writ of assistance issued by the circuit court, after an appeal to this court, to put the appellee in possession of a part of the property involved in the litigation below. The material facts affecting the motion, as found and determined by the circuit court, or otherwise shown by the motion papers, are these: On the seventeenth of November, 1866, Oliver, the appellee, executed to Henry S. Cunningham, Garrett B. Hunt, and Jacob Eschelman a mortgage on certain lands in Michigan to secure a debt of $35,000. Included in this mortgage was the S. frac. 1/2 section 12, township 29, N., range 8 E., containing 227 5-100 acres, more or less, 'with the saw-mill and other improvements thereon.' In the summer of 1868, Oliver owned and possessed other lands incumbered by other mortgages, one to Calvin Haines and Philip N. Ranney, and others to other parties, and he also owed other debts to other persons, which were unsecured, amounting in the aggregate to a large sum. On the second of September, 1868, Cunningham assigned his interest in the $35,000 mortgage to his co-mortgagees, Hunt and Eschelman, and then took a conveyance from Oliver of all his property, real and personal, for the purpose of assisting him in disposing of it, and realizing any surplus that should remain after his debts were paid. Among other lands conveyed by Oliver at this time and for this purpose was frac. section 12, township 29 N., range 8 E. The decree finds that Cunningham took this conveyance 'for the joint benefit of himself and his co-mortgagees.' After this conveyance was made, Cunningham, Hunt, Eschelman, Haines, Ranney, George Robinson, and Henry Robinson formed a partnership to carry on lumbering business, and to cut the timber upon the property and manufacture it. Hunt then proceeded to foreclose the $35,000 mortgage, and purchased the mortgaged property at the foreclosure sale. After this, on the thirteenth of March, 1873, Oliver filed a bill in equity in the circuit court of the United States for the eastern district of Michigan against Cunningham, Hunt, Eschelman, Haines, Ranney, and the two Robinsons, the object of which was to redeem the lands which had been conveyed to Cunningham and to charge the defendants, as mortgagees in possession, with the rents and profits of the property. Upon this bill a final decree was rendered on the twenty-first of September, 1882, finding due from the defendants to Oliver the sum of $41,488.87, for which execution was ordered, and directing the defendants to 'surrender and yield up to the complainant possession of all lands transferred by said complainant to said defendant Cunningham, by deeds dated September 3, 1868,' and to make, execute, and deliver to complainant good and sufficient conveyances to transfer all their title and interest in and to the land described in said deeds, and which should describe and specify the lands as follows: 'The entirety of the following lands: * * * Entire frac. sec. 12, town. 29 north, range 8 east. * * *' From this decree Hunt and Eschelman alone appealed, giving security for a supersedeas. Upon section 12 is a valuable sawmill but the complainant claims it is located on the north half of the section and not on the south half. After the appeal and supersedeas were perfected, Oliver applied to the circuit court for a writ of assistance to put him in possession of the north half of this section, and the writ was granted, on the ground that as Hunt had title only to the south half of the section, his appeal did not operate to stay the execution of the decree as to the north half. It is to stay the execution of this writ that the present application is made. We think this motion should be granted. The decree appealed from finds as a fact that although the conveyance of Oliver was in form to Cunningham alone, it was taken by him for the joint benefit of himself and his co-mortgagees; that is to say, Hunt and Eschelman, the appellants. Such being the case, it is a matter or no importance that the legal title to the north half of section 12 may not have been in either of the appellants. As Cunningham took title to the whole property for them as well as himself, whatever in the decree affects that title affects them as well as him. They have been charged with the entire amount realized from the whole property, and it is impossible to reach any other conclusion, from the papers submitted on this motion, than that, in the whole proceeding below, the appellants were deemed to have been in equity grantees under the deed to Cunningham jointly with him, and that their rights under the appeal are to be governed accordingly. Certainly an appeal with supersedeas by him would on the face of the papers stay the execution of the writ of assistance now complained of, and if such an appeal would have that effect as to him, the present appeal must as to these appellants. A writ of supersedeas, such as is asked for, may issue on application to the clerk by the appellants, or either of them.

106.US.623

I. Section 21 of the act of July 14,1870, c. 255, which provided that, in lieu of the duties then imposed by law, certain duties specified should thereafter be imposed on certain enumerated articles, did not repeal, as to such articles, sect. 6 of the act of larch 3, 1865, c. 80, which declared that there should be thereafter paid on all goods the growth or produce of countries east of the Cape of Good Hope, when imported from countries west of that Cape, a duty of ten per cent ad valorem in addition to the duties imposed thereon when imported directly from the place of their growth or production. 2. The latter provision is a general commercial regulation, made to encourage direct importation from countries east of the Cape, as well as to benefit American shipping, and is applicable without regard to the regular duties imposed for purposes of revenue, and even where the articles are otherwise entirely free of duty.

This is an action brought for the recovery of duties alleged to have been illegally imposed. The following is the agreed statement of facts, so far as necessary to understand the case: The plaintiffs, in February and April, 1871, imported into the port of Boston from Liverpool 988 packages of tea, and entered the same in warehouse under bond. At various subsequent dates the plaintiff withdrew these teas for consumption. These teas were produced in China. The defendant assessed and plaintiffs paid to the defendant, as collector of customs, duties thereon at the rate of 15 cents per pound, and in addition a duty of 10 per cent. ad valorem, paying the latter amount under protest. The defendant assessed and exacted the duty of 15 cents per pound under the provisions of section 21 of the act of July 14, 1870, (16 St. 262,) which provides that after the thirty-first day of December, 1870, in lieu of the duties now imposed by law on the articles hereinafter enumerated or provided for imported from foreign countries, there shall be levied, collected, and paid the following duties and rates of duties, that is to say, on teas of all kinds, 15 cents per pound. The defendant assessed and exacted the additional duty of 10 per cent. ad valorem under the provision of section 6 of the act of March 3, 1865, (13 St. 493,) which provides that 'there shall be hereafter collected and paid on all goods, wares, and merchandise of the growth or produce of countries [east] of the Cape of Good Hope (except raw cotton and raw silk as reeled from the cocoon, or not further advanced than tram, thrown, or organzine) when imported from places west of the Cape of Good Hope, a duty of 10 per cent. ad valorem in addition to the duties imposed on any such articles when imported directly from the place or places of their growth or production.' The circuit court gave judgment for the plaintiff, and the case is brought here by writ of error. The sole question is whether the additional duty of 10 per cent. ad valorem was or was not lawfully exacted; and this depends on the question whether the provision of the act of 1865, for the payment of 10 per cent. on goods produced in countries east of the Cape of Good Hope when imported from places west of the Cape, was a general commercial regulation for the encouragement of direct trade with those countries, as well as for the benefit of American shipping, or whether it was intended simply as an increase of duties for purposes of revenue. If the former, it would be independent of the duties imposed on the articles, and would not be repealed by a modification of them; if the latter, the result might be different. We are of opinion that it was intended as a general regulation of commerce. The object of the law was to favor direct importation from countries east of the Cape, without regard to the amount of duties imposed on the articles imported. These might be more, or might be less, or might be nothing; yet, the 10 per cent. ad valorem was to be paid if the articles were imported from places west of the Cape. This would incidentally benefit our own shipping, as that principally employed in the direct trade; whereas importation of the same goods to European ports, and thence to this country, would generally be made in foreign vessels. The law in various forms has been in existence since 1861. The successive enactments were as follows: St. August 5, 1861, c. 45, § 3: 'That all articles, goods, wares, and merchandise imported from beyond the Cape of Good Hope in foreign vessels, not entitled by reciprocal treaties to be exempt from discriminating duties, tonnage, and other charges, and all other articles, goods, wares, and merchandise not imported direct from the place of their growth or production, or in foreign vessels, entitled by reciprocal treaties to be exempt from discriminating duties, tonnage, and other charges, shall be subject to pay, in addition to the duties imposed by this act. 10 per centum ad valorem: provided, that this rule shall not apply to goods, wares, and merchandise imported from beyond the Cape of Good Hope in American vessels.' 12 St. 293. St. July 14, 1862, c. 163, § 14: 'That from and after the day and year aforesaid there shall be levied, collected, and paid on all goods, wares, and merchandise of the growth or produce of countries beyond the Cape of Good Hope, when imported from places this side of the Cape of Good Hope, a duty of 10 per cent. ad valorem, and in addition to the duties imposed on any such articles when imported directly from the place or places of their growth or production.' 12 St. 557. The act of March 3, 1863, c. 77, § 2, simply exempted from the operation of the law cotton and raw silk as reeled from the cocoon. The eighteenth section of the new tariff act of June 30, 1864, c. 171, repealed and re-enacted the Cape law of 1862, only changing the words 'beyond the Cape' to 'east of the Cape,' and the words 'this side' to 'west.' The act of March 3, 1865, c. 80, § 6, (which is the law now under consideration,) is set out in the statement of facts. This statute remained in force until supplied by the third section of the tariff act of 1872, which was couched in the same terms, (only adding wool to the excepted articles,) and is still in force. It will be observed that the first of these laws (that passed in 1861) imposed the additional 10 per cent. ad valorem on goods imported in foreign vessels from beyond the Cape unless they were exempt from discriminating duties by reciprocal treaty, and goods imported in American ships were ex industria exempted from the burden. But it is obvious that this law would have failed to reach the object intended, since it would have been a dead letter in all cases where we had reciprocal treaties with other nations placing their ships on an equality with our own. The next enactment, therefore, left out the reference to foreign ships and propounded the regulation in the form which has ever since been substantially followed. It imposed the additional 10 per cent. ad valorem on the products of the countries beyond, or east of, the Cape of Good Hope, when imported from places this side, or west of, the Cape. By this means the direct trade was distinctly favored, and, without expressly making any discrimination between domestic and foreign vessels, the desired encouragement in favor of the former was substantially attained. It will also be observed that the provision was successively renewed in the different customs laws without regard to the modifications made in the duties themselves, or the changes made in the free list. It was very early contended by importers that the law was not intended to affect goods which were on the free list, and exempt from any duty—a position somewhat plausible from the words of the law, which were these: 'A duty of 10 per cent. ad valorem in addition to the duties now imposed on any such articles.' It was argued that the 10 per cent. could not be said to be 'in addition to the duties now imposed' where no duties were imposed. But such a construction would evidently have defeated the purpose of the law; and accordingly, it was decided by this court in the case of Hadden v. The Collector, 5 Wall. 107, that the act of 1862 (which was then under consideration) did apply to goods which at the date of the act were duty free, as well as to those which were subject to duty. Reliance was placed in that case, it is true, on the literal phraseology of the law; but the judgment of the court was in conformity with the clear intent of the legislature, as we have supposed it to be. The same conclusion was come to in the case of Sturges v. The Collector, 12 Wall. 19, in expounding the act of 1865, the one now before us. The court, speaking through Mr. Justice CLIFFORD, referred to the evident purpose of congress, not only to augment the revenue, but to make a discrimination 'in favor of the direct trade.' Pages 26, 27. In conformity with the principle of these decisions, we are of opinion that the law in question continues in force in reference to all goods not expressly exempted from its provisions, whether dutiable or free, and whether new duties imposed are declared to be in lieu of all other duties or not. Such a declaration is a mere formula to indicate that the duties newly imposed are to take the place of and supersede the previous duties specially imposed in the tariff schedules, and not to abrogate any general commercial regulations not expressly mentioned. The duties on tea have been several times changed since 1861; but in our view, these changes have only had reference to the ordinary duties imposed for the purposes of revenue only, and not to the standing regulation which we are considering. In 1861, the regular duty on tea was fixed at 15 cents per pound; in 1864, at 25 cents; in 1870, at 15 cents; and in 1872 it was placed with coffee on the free list. In 1861, 1864, and 1870, the duty was fixed in the general tariff laws of those years respectively; the two first of which also contained the Cape clause discriminating in favor of direct importation. The tariff act of 1870 did not re-enact this clause, but neither was it repealed; it remained in force as enacted in 1865 until re-enacted in the general tariff act of 1872. We do not think that it was necessary to re-enact it in 1870 in order to make it operative upon those imports within its scope, the duties on which were revised by that act. The object of that revision was to readjust the regular schedule of duties, not to interfere with the Cape rule as a regulation of commerce, or any other general regulation not expressly mentioned or referred to in the act, and not repugnant to its provisions. Both laws could stand together without repugnancy. The Cape rule contained in the act of 1865 could only be regarded as repealed by implication, if repealed at all; and considering the object and purpose of the rule, such an implication was not necessarily involved in the act of 1870, and therefore will not be inferred. It is urged, however, that the case of Gautier v. Arthur, 104 U. S. 345, decides adversely to the view now expressed. But an examination of that case will show that the principle of construction which we have suggested was approved in the opinion of the court. That was the case of plumbago imported in a French vessel direct from Ceylon in 1873. The act of June 6, 1872, had exempted plumbago from all duty, but the seventeenth section of the act of 1864 had imposed posed a discriminating duty of 10 per cent. ad valorem, in addition to the duties imposed by law on all goods imported in foreign vessels, except where by treaty such vessels were entitled to the same privileges as American vessels. The court intimated that if the act of 1872 had done nothing more than to exempt the article from duty, the act of 1864 would still be operative. The court, in its opinion, says: 'A construction of the section, in harmony with this view, is not an unreasonable one. In our judgment it best carries out the purposes of the act imposing a discrimination; and it comforms to the construction which this court, in Hadden v. The Collector, reported in 5 Wall. 107, gave to the succeeding section of the same act.' The opinion then goes on to notice that the act of 1872 does contain something more; that the general repealing clause repeals all acts and parts of acts inconsistent with its provisions, excepting certain other acts, among which the discriminating section of the act of 1864 is not mentioned; and the opinion adds: 'Both from* the general language of the repealing clause, and the enumeration of the provisions of acts excepted from it, we are forced to conclude that it was the intention of congress to put an end, so far as the free list in the fifth section of the act of 1872 is concerned, to the operation of the discriminating act of 1864.' It is only necessary to observe that the act of July 14, 1870, on which the defendants in error rely in respect to the duty on teas, contained no such repealing clause. We do not see, therefore, that the case of Gautier v. Arthur contravenes the conclusion to which we have come. The judgment of the circuit court must be reversed, and the cause remanded with directions to award a new trial.

106.US.563

1. Where a foreclosure suit was brought, and the municipal corporation within which the mortgaged property was situate was allowed to intervene and set up a claim for taxes thereon- Held, that the order of the Circuit Court rejecting the claim is binding upon the corporation, and the latter is entitled to an appeal where the amount of taxes is sufficient to give this court jurisdiction. 2. Certain taxes assessed for the years 1877 and 1878, by the city of Savannah, upon land situate within its limits, which belongs to the Atlantic and Gulf Railroad Company, held to be unauthorized by law.

I do not agree to the construction which the court places upon the act of the state of Georgia subjecting the railroad company to taxation. When that statute says that the property of the railroad company is 'to be taxed as other property of the people of the state,' I understand it to mean that it is to be subjected to all the lawful taxes imposed by state laws under the same circumstances that the property of the citizen is. The case of Bailey v. Magwire, 22 Wall. 215, construes a statute of Missouri, passed under similar circumstances and in language almost identical, to have this meaning. That the statute of Georgia only provides in that act for the means of collecting the taxes due the state, affords no argument against taxation by counties and cities for local purposes, because the laws already in existence were sufficient for that purpose.

108.US.389

Certificates of preferred stock of the Ohio and Mississippi Railway Company were issued, containing the following language : "The preferred stock is to be and remain a first claim upon the property of the company after its indebtedness, and the holder thereof shall be entitled to receive from the net earnings of the company seven per cent. per annum, payable semi-annually, and to have such interest paid in full, for each and every year, before any payment of dividend upon the common stock ; and whenever the net earnings of the corporation which shall be applied in payment of interest on the preferred stock and of dividends on the common stock shall be more than sufficient to pay both said interest of seven per cent. on the preferred stock in full, and seven per cent. dividend upon the common stock, for the year in which said net earnings are so applied, then the excess of such net earnings after such payments shall be divided upon the preferred and common shares equally, share by share :" Held, That the preferred stockholders had no claim on the property superior to that of creditors under debts contracted by the company subsequently to the issue of the preferred stock, and that their only valid claim was one to a priority over the holders of common stock.

In November, 1876, William King and others, holders of second-mortgage bonds and of Springfield Division bonds of the Ohio & Mississippi Railway Company, filed a bill in the circuit court of the United States for the district of Indiana, to foreclose two mortgages on the property of the company, subject to a first mortgage. In August, 1877, Allan Campbell, a defendant in that suit and trustee of one of the two mortgages, called the second mortgage, and also of the first mortgage, filed a bill and a cross-bill in the same court to foreclose those two mortgages. In January, 1879, the two suits were consolidated. In December, 1879, George Henry Warren and others, as owners of preferred stock of the company, having been made parties defendant to the consolidated suit, filed a cross-bill. To this cross-bill a general demurrer for want of equity was interposed. The court sustained the demurrer, and entered a decree dismissing the cross-bill for want of equity. King v. Ohio & M. R. Co. 2 Fed. Rep. 36. From this decree the plaintiffs in that bill have appealed to this court. The sole question involved is whether the preferred stockholders are entitled to have their shares of stock declared to be a lien on the property of the company next after the first mortgage. As the question arises on demurrer, the allegations of the cross-bill are to be taken as true. The Ohio & Mississippi Railroad Company, having been incorporated by Indiana in February, 1848, was incorporated by Ohio in March, 1849, and by Illinois in February, 1851. Under a second mortgage made by it in January, 1854, all the property and franchises of the Illinois company were sold, on a foreclosure of that mortgage, in June, 1862, to the Ohio & Mississippi Railroad Company, an Illinois corporation created in February, 1861, for the purpose of purchasing the property and franchises of the Illinois corporation of February, 1851. The property and franchises of the Indiana and Ohio corporations were sold, under judicial decrees, in January, 1867, subject to certain mortgage debt recited in the decrees, to Allan Campbell and others, 'trustees of creditors and stockholders of said Ohio & Mississippi Railroad Company, (Eastern Division.)' This trust was created by an instrument in writing, dated December 15, 1858, and known as the 'turst agreement of creditors and stockholders of the Ohio & Mississippi Railroad Company of Indiana and Ohio.' By it Allan Campbell and others were created trustees, for the purpose of providing for and protecting claims of judgment creditors and other persons holding liens on the property and franchises of the company, and also certain holders of unliquidated demands against it, and also the interests of the stockholders of the company. Such interests of the creditors and stockholders became vested in the trustees from time to time, so that on the fourteenth of September, 1867, they were the owners, subject to the terms of the trust agreement, of the rights, claims, and interests of all the creditors and stockholders of the company in its property and franchises, except those existing under a first mortgage made in May, 1853. The trustees issued, in exchange for the interests they so acquired, certificates in two classes, preferred and common. Under an amendment, made in April, 1863, to the trust agreement, the trustees purchased, for the benefit of the trust and the persons interested therein under the agreement of December, 1858, all the stock and a portion of the bonds of the Illinois company of 1851, sometimes called the Western Division. On the fourteenth of September, 1867, the certificate holders, by an instrument known as 'Amendments to the trust agreement of December, 1858,' resolved that the trustees had made the purchase of January, 1867, for the benefit of those interested in the trust agreement of December, 1858, and had, in virtue of the amendment of April, 1863, purchased all the stock and a portion of the bonds of the Illinois company of 1851; that, by such purchases, the whole road from Cincinnati to St. Louis had become the property of the trust, subject only to outstanding mortgages; that it was the intention of all parties interested in the trust to form a new corporation, to which the entire property of the trust might be transferred, in accordance with the original agreement, such property to consist of all the rights and interests in the railroad in the three states; that the capital stock of the new corporation should consist of 35,000 shares of preferred stock and 200,000 shares of common stock, being in all $23,500,000 of stock, which should be issued and distributed to the owners of trustees' certificates registered on the books of the trust, as follows, namely, to owners of prefered certificates, preferred full-paid stock, for the amount of such preferred certificates, at the rate of one share of preferred stock for every $100 of preferred certificates; that it should 'be declared upon the face of said preferred stock that it is to be and remain a first claim upon the property of the corporation after its indebtedness;' that the holders thereof shall be entitled to receive from the net earnings of the company 7 per cent. per annum upon the amount of said stock, payable semi-annually, 'and to have such interest paid in full, for each and every year, before any payment of dividend upon the common stock of said corporation, and that whenever the net earnings of the corporation which shall be applied in payment of interest on the preferred stock and of dividends on the common stock shall be more than sufficient to pay both said interest of 7 per cent. on the preferred stock in full, and 7 per cent. dividend upon the common stock for the year in which said net earnings are so applied, then the excess of such net earnings, after such payments, shall be divided upon the preferred and common stock equally, share by share;' that the common stock should be issued to holders of common certificates at the same rate; that the new corporation should be authorized to create a new mortgage on its entire property, consisting of 340 miles of railroad from Cincinnati to St. Louis, and upon the contemplated improvements thereon, for an amount not exceeding $6,000,000, $4,000,000 whereof should be used exclusively to take up the then outstanding bonds issued under the mortgages theretofore created on said road; that, if a branch should be built to Louisville, the new corporation might increase the preferred stock at the rate of $10,000 for each mile in length of such branch, and the $6,000,000 mortgage to the amount of $15,000 for each mile of such branch; and that holders of the outstanding bonds of the old company, both eastern and western divisions, and holders of bonds to be issued by the new corporation, should be entitled to one vote for each $100 of bonds so held, at all stockholders' meetings, and on all affairs of the corporation. Under statutes of Indiana and Ohio, Allan Campbell and others, as such trustees, became a corporation in those states by the name of the Ohio & Mississippi Railway Company. Its capital stock was fixed at 35,000 shares, of $100 each, of preferred stock, and 200,000 shares, of $100 each, of common stock, and provision was made, in the certificate of incorporation, for increasing its preferred stock in an amount not exceeding $10,000 a mile for each mile of a branch to Louisville. In November, 1867, the Illinois company and the Indiana and Ohio company were consolidated under the name of the Ohio & Mississippi Railway Company, by articles of consolidation which provided for issuing preferred and common capital stock of the consolidated company to the extent above stated, and that the consolidated corporation should be authorized to create a new mortgage on the road for $6,000,000, of which $4,000,000 should be appropriated and used to take up the then existing mortgage bonds of the property, and should have 'all such further powers and rights as are conferred and contemplated in certain amendments adopted by the certificate-holders at a meeting held by them on the fourteenth day of September, A. D. 1867, of an agreement dated December 15, A. D. 1858, of the creditors and stockholders of the Ohio & Mississippi Railroad Company of Indiana and Ohio, said agreement representing a trust which, at the date of said amendments, embodied the entire ownership of the property of both said companies so consolidated.' The consolidated company issued preferred stock to the amount of 35,000 shares, upon certificates in the following form: 'OHIO AND MISSISSIPPI RAILWAY COMPANY. 'Reorganized and consolidated 1867 'Preferred Stock. 'This is to certify that _____ is entitled to *05r shares of the preferred capital stock of the Ohio & Mississippi Railway Company, of $100 each, transferable only on the books of said company, in the city of New York, in person or by attorney, on the surrender of this certificate. The preferred stock is to be and remain a first claim upon the property of the corporation after its indebtedness, and the holder thereof shall be entitled to receive from the net earnings of the company 7 per cent. per annum, payable semi-annually, and to have such interest paid in full, for each and every year, before any payment of dividend upon the common stock; and whenever the net earnings of the corporation which shall be applied in payment of interest on the preferred stock and of dividends on the common stock shall be more than sufficient to pay both said interest of 7 per cent. on the preferred stock in full, and 7 per cent. dividend upon the common stock, for the year in which said net earnings are so applied, then the excess of such net earnings after such payments shall be divided upon the preferred and common shares equally, share by share.' These preferred shares were issued in exchange for the trustees' preferred certificates, in pursuance of the resolutions of September 14, 1867. The cross-bill alleges that the certificate-holders, by the resolutions of September 14, 1867, intended and declared that the preferred stock to be issued should give to its holders, not only a preference in respect to dividends over the common stock, but also the preference of a specific and continuing lien and security upon the property of the new corporation, next after the then existing mortgage indebtedness; that it was in accordance with and in execution of this intention that the certificate-holders further resolved that it should be declared upon the face of the certificates of such preferred stock that it should be and remain a first claim upon the property of the corporation after its indebtedness; that the indebtedness referred to in the resolutions, and in the preferred-stock certificates, was such indebtedness only as should arise under the $6,000,000 mortgage, that amount being designed to represent, and having been authorized for the purpose of taking up and canceling, the indebtedness existing at the time of the consolidation on the property of the two consolidating companies; and that the consolidated company, under the articles of consolidation, became bound to perform the provisions of the amendments of September, 1867, to the trust agreement, as to preferred stock, and the securing the same on the property of the consolidated company to the full intent thereof. Besides the preferred stock to the amount of $3,500,000, further preferred stock, in the above form, to the amount of $800,000, was issued on the building of the Louisville branch. The plaintiffs in the cross-bill, as owners of shares of such preferred stock, aver that they, in common with the other preferred stockholders, had and have a lien and security and first claim upon all the property and franchises of the consolidated company which existed at the time of the original issue of such preferred stock, in or about the year 1867, next after and subject only to the indebtedness under the $6,000,000 mortgage, as authorized by said articles of consolidation, as representing and designed to cover and cancel the only indebtedness on either of the consolidated roads which was outstanding at the time of such consolidation, and are entitled to the payment of interest, as stipulated in the certificate, out of such net earnings of the company as may remain after the payment of interest on first-mortgage bonds, and in priority and preference to the payment of any interest or indebtedness under any mortgage subsequent in date to the first mortgage, that being a mortgage executed in December, 1867, under which bonds to the amount of about $6,800,000 have been issued. Under the so-called second mortgage, issued in March, 1871, and sought to be foreclosed in the original suit, $4,000,000 of bonds have been issued. The other mortgage sought to be foreclosed in the original suit is called the Springfield Division mortgage, and was executed in January, 1875, to secure $3,000,000 of bonds. The bill prays for a decree that such preferred stockholders are entitled, as such, to, and have always had, a specific and continuing lien and security and first claim upon and in all the property and franchises of the company, next after, and subject only to, the interest and security therein which is given under the first mortgage of December, 1867, and have been and are entitled to receive 7 per cent. interest upon their shares, out of the net earnings of the company remaining after the payment of interest to the holders of the first-mortgage bonds. It also prays that, in any decree of foreclosure of either of the mortgages so sought to be foreclosed, the rights of the preferred stockholders may be declared to be a lien and security on the property and franchises of the company next after that secured by the first mortgage of December, 1867; that, in case of foreclosure of the first mortgage, all surplus, after the satisfaction of claims thereunder, be applied, first, to payment in full, or pro rata, of the par value of their shares, to the preferred stockholders; and that, in case of foreclosure of either the second mortgage or the Springfield Division mortgage, the decree therein shall provide that any sale, in either of such cases, shall be subject to not only the amount due under the first mortgage, but also, and next in order, to the amount at par of the preferred stock, with all unpaid interest due thereon at 7 per cent. The rights of the holders of preferred stock in this case must be determined by the language of the stock certificate. That is exactly the smae as the language of the written instruments which preceded the issuing of the certificates. The shares are shares of the capital stock of the company, though shares with different privileges from shares of the common stock. The certificate declares the quality of the preferred stock in two respects: (1) Its relation to the property of the company; (2) its relation to the net earnings. As to the property, it is declared that the preferred stock is to be and remain a first claim on the property of the company 'after its indebtedness.' But it is stock, and part of the capital stock, with the characteristics of capital stock. One of such characteristics is that no part of the property of a corporation shall go to reimburse the principal of capital stock until all the debts of the corporation have been paid. It would require the clearest language to admit of the application of a different rule to any capital stock. Section 5 of the statute of Indiana of June 15, 1852, 'establishing provisions respecting corporations,' (1 Davis' St. 369,) enacted as follows: 'If any part of the capital stock of such company shall be withdrawn and refunded to the stockholders before the payment of all the debts of the company, all the stockholders of such company shall be jointly and severally liable for the payment of such debts.' The railroad law of Indiana of March 3, 1865, (1 Davis' St. 730,) entitled 'An act to authorize, regulate, and confirm the sale of railroads, to enable purchasers of the same to form corporations and to exercise corporate powers, and to define their rights, powers, and privileges, to enable such corporations to purchase and construct connecting and branch roads, and to operate and maintain the same,' under which law this company was reorganized, provided, in section 5, that the corporation should have power to 'make preferred stock, make and establish preference in respect to dividends in favor of one or more classes of stock over and above other classes, and secure the same, in such order and manner, and to such extent, as said corporation may deem expedient;' and section 20 of the general law of Indiana of May 11, 1852, providing for the 'incorporation of railroad companies,' (1 Davis' St. 706,) provided that a corporation organized under it might issue 'a preferred stock to an amount not exceeding one-half of the amount of its capital, with such priority over the remaining stock of such company, in the payment of dividends, as the directors of such company may determine, and shall be approved by a majority of the stockholders.' It would be difficult to say that these statutory provisions allowed any preference in shares of capital stock, except a preference among classes of shares, or any preference of any class of shareholders over creditors. It is not to be supposed that those engaged in reorganizing this company intended to violate the law of Indiana, or the general principles of law applicable to private corporations. Nor is there anything to show that they did. The language of the certificate is entirely satisfied by referring it to a priority in rank of the preferred stock over the common stock; to a first claim of the preferred stock on the property of the corporation, after its indebtedness should be paid, when there should be moneys to be divided among stockholders,—a claim which should be first as compared with the claim of other stock. Claims of stockholders, as such, on the corpus of the property of the company in which they are stockholders, do not arise until the debts of the company are paid. Until then the shares confer rights merely as regards profits and voting power. It is urged, for the appellants, that the expression 'after its indebtedness' means, next after the indebtedness then existing or then authorized; that the preferred stock was issued to the holders of preferred certificates, owners of the property, as a quasi purchasemoney mortgage on its sale; and that they intended to preserve their position except as to the new $6,000,000 mortgage, because they authorized that and did not authorize any other. It is very certain that at best the words 'after its indebtedness' are, by themselves, ambiguous on their face, and are as capable of being applied to future indebtedness as of being limited to then existing indebtedness. Under the general rules applicable to the position of the stockholders of a corporation as regards its creditors, a claim of the kind here made should rest on clear and not doubtful language. But the provision which follows, as to the rights of the preferred stock in the net earnings of the company, leaves no doubt as to the meaning of the whole. There is a unity of right in the claim of the preferred stock on the property of the company, and in the title of its holder to receive a share of the net earnings of that property. His proprietorship in those earnings is a right to receive from them so much a year, if earned, before the common stock receives any dividend therefrom, and, when the two classes of stock have each received the same specified amount out of the year's net earnings, he has the right to share equally in the surplus with the holder of common stock. Thus he can have no income on his stock unless there are net earnings. Those net earnings are what is left after paying current expenses and interest on debt, and everything else which the stockholders, preferred and common, as a body corporate, are liable to pay. The holders of preferred stock have the same relation, by virtue of the certificate, to the corpus of the property, which they have to its net earnings. Their position in regard to both is one inferior to that of all creditors. They are not preferred as to reimbursement of principal, or as to a right to net earnings, over any one but the holders of common stock. The interest to be paid to them is not to be paid absolutely, as to a creditor, but only out of net earnings the same fund out of which the dividends on common stock are to be paid. Though called 'interest,' it is really a dividend, because to be paid on stock and out of net profits. There was no restriction on the creation of future indebtedness, and, necessarily, the net earnings of future business would be ascertained in reference to such future indebtedness and the interest on it; and the words 'its indebtedness,' in the same sentence, naturally mean 'its future indebtedness,' in reference to which the net earnings subsequently treated of are to be ascertained. Creditors may resort to the body of their debtor's property for interest as well as principal. But these holders of preferred stock are limited, for any income or interest, to the net earnings. There is nothing in the certificate which clothes them with a single attribute of a creditor, while it specially gives them, as stockholders, an equal interest with the common stockholders in the excess of net earnings in each year, after paying therefrom 7 per cent. on each share of stock, preferred and common. Whatever position the holders of preferred certificates occupied before they accepted preferred stock, whatever special right of lien they had, they became corporators, proprietors, shareholders, and abandoned the position of creditors, and took up towards existing and future creditors the same position which every stockholder in a corporation occupies towards existing and future creditors. His chance of gain, by the operations of the corporation, throws on him, as respects creditors, the entire risk of the loss of his share of the capital, which must go to satisfy the creditors in case of misfortune. He cannot be both creditor and debtor, by virtue of his ownership of stock. In this case all the parties holding trustees' certificates united to form the new corporation, and converted themselves into stockholders in it. It seems very clear that if the trustees representing the holders of trustees' certificates had gone on and operated the road for them, not organizing a new company, any debts contracted by the trustees in the business would have had priority over the claims of the holders of such certificates. So, in becoming stockholders in the new company, with the right to vote as to its management, and to share in its earnings, they must have intended to allow, through the corporation, a priority of like debts over their claims as stockholders. The same principles must govern the present case which were applied by this court in St. John v. Erie Ry. Co. 22 Wall. 136, where creditors took preferred stock. It was held that they ceased to be creditors and could be regarded only as stockholders, with a chance for dividends out of net earnings and the power of voting, and a priority over holders of common stock, but not a priority over debts subsequently contracted. Much stress is laid on the averment in the cross-bill that the existence of the preferred stock and of the certificates therefor and of their contents was known to the trustees under the subsequent mortgages before those mortgages were made, and to the bondholders under those mortgages before they became such; and it is urged that the assent of the preferred stockholders to the creation of the subsequent mortgages should have been obtained. The answer to this view is that the preferred stockholders had no rights which made their assent necessary to the validity, as against them, of the mortgages in question; and that, represented as they were by the corporation and its directors, the act of making the mortgages was a sufficient assent of the preferred stockholders, if assent were necessary, there being no allegation in the cross-bill inconsistent with the fact that the issuing of the mortgages was known to and participated in and sanctioned by those who were holders of the preferred stock when the mortgages were created. As to the claim that the appellants, if they have no priority over the second mortgage, have, at all events, as against the company, a lien next after the second mortgage on the property not covered by the Springfied Division mortgage, and have, in any aspect of the case, a valid claim on the surplus assets of the company, after paying its debts, superior to the claim of the common stockholders, it is sufficient to say that we do not deem it proper that those questions should be disposed of on a demurrer to this cross-bill, as they can be raised and decided under the answer which these appellants have filed as defendants in the consolidated suit. The decree of the circuit court is affirmed.

109.US.84

In 'ennsylvania, as in other States, dower is not barred by an assignment ,the husband's estate under the Banklpt Act-o f the United States, and a sale by the assignee in bankruptcy under order of the court.

This is an action by the assignee in bankruptcy of S. B. W. Gill to recover the purchase money of land of the bankrupt sold by the plaintiff to the defendant. In the case stated by the parties the following facts were agreed: On the twenty-eighth of November, 1877, Gill, upon petition of his creditors. was adjudged a bankrupt by the district court of the United States for the western district of Pennsylvania, and the plaintiff was afterwards appointed assignee of his estate, which included two lots of land in Pittsburgh. On the twenty-seventh of May, 1878, the assignee, pursuant to an order of the district court, and for the purpose of raising money to pay the bankrupt's debts, sold these lots by public auction to the defendant for the sum of $465, subject to the lien of a certain mortgage for $2,550; but the order of the court directed, and the advertisement thereof stated, that all other liens and incumbrances should be discharged by the sale. At the time of the commencement of the proceedings in bankruptcy the bankrupt had a wife, who is still living, and who claims a right of dower in the land. The sale having been confirmed absolutely by the district court, the assignee thereupon executed and tendered a deed of the land to the defendant, and demanded payment of the purchase money, which was refused, by reason of the incumbrance of the right of dower. It was agreed that if the court should be of opinion that the right of dower of the bankrupt's wife was divested by the bankruptcy proceedings and sale, judgment should be entered for the plaintiff for the sum of $465, with interest and costs; otherwise, judgment for the defendant. Upon the case stated the supreme court of Pennsylvania gave judgment for the defendant, and the plaintiff sued out this writ of error. The single question is whether a wife's right of dower is barred by an assignment in bankruptcy and a sale by the assignee in bankruptcy under order of the court. By the law of England, which is our law in this respect, except so far as if has been changed by statute, the wife's right of dower is no part of the estate of the husband, and is not affected by proceedings in in bankruptcy against him. Squire v. Compton, Vin. Abr. 'Dower, G.' pl. 60; Smith v. Smith, 5 Ves. 189. If it is barred in this case, it must be either by force of the provisions of the recent bankrupt act, or by reason of the nature of the right of dower under the local law of Pennsylvania. But, under the provisions of the bankrupt act, all that passes to the assignee by the assignment in bankruptcy, or that can be sold by direction of the court, is property or rights of the bankrupt, or property conveyed by the bankrupt in fraud of creditors, unless, indeed, a person holding a mortgage or pledge of, or lien upon, property of the bankrupt elects to release the same. Rev. St. §§ 5044-5046, 5061-5066, 5075; St. June 22, 1874, c. 390, § 4; Donaldson v. Farwell, 93 U. S. 631. The law of Pennsylvania as to the liability of the right of dower to be taken for the debts of the husband is certainly, in some respects, peculiar. An act passed in 1705, 'for taking lands in execution for payment of debts,' provided that all lands of a cebtor, having no sufficient personal estate, should be liable to be seized and sold upon judgment and execution obtained against him; and that, in case of default in payment of any debt secured by mortgage of real estate, the mortgagee might, by writ of scire facias, obtain execution to be levied by sale of the mortgaged premises. 1 Dall. Laws Pa. 67-71. Another act passed in the same year, 'for the better settling of intestates' estates,' while recognizing a right of dower in the widow, 'which dower she shall hold as tenants in dower do in England,' authorized the administrator, in case of insufficiency of the personal estate, to sell and convey the lands of the deceased, including the rights of the widow therein, for the payment of his debts. Id. Appendix, 43-45. It was established by judicial decisions in Pennsylvania, upon the construction and effect of these statutes, before the beginning of the publication of reports, that the wife's right of dower could be taken and sold on execution upon a judgment recovered against the husband, or upon scire facias on a mortgage executed for valuable consideration by him alone, or under a devise by him for the payment of his debts. Howell v. Laycock, cited in 2 Dall. 128, and 4 Dall. 301, note; Graff v. Smith's Adm'rs, 1 Dall. 481, 484; Scott v. Crosdale, 2 Dall. 127; S. C. 1 Yeates, 75; Mitchell v. Mitchell, 8 Pa. St. 126; Blair County Directors v. Royer, 43 Pa. St. 146. The grounds of those decisions have been explained by two of the most eminent judges of Pennsylvania. In Kirk v. Dean, 2 Binn. 341, 347, Chief Justice TIGHMAN said: 'It may be proper to take notice of deeds of mortgage of the husband's property. It is understood that by such deeds the wife may be barred of dower, though she was no party to the conveyance. But this depends on another principle, in which the law of Pennsylvania differs from the common law. The right of creditors prevails against the right of dower. A purchaser under an execution against the husband takes the land discharged of dower; and the only mode of proceeding on a mortgage, with us, is to sell the land by an execution. We have no court in which the equity of redemption can be foreclosed.' In Helfrich v. Obermyer, 15 Pa. St. 113, 115, Chief Justice GIBSON said: 'Land is a chattel for payment of debts only when the law has made it a fund for that purpose. It then has undergone a species of conversion, so far as may be necessary to the purpose of satisfaction, which extinguishes every derivative interest in it which cannot consist with the qualities it has been made to assume. Thus, a judgment, or a mortgage, binds it and converts it; and it is seized as personal property on a fieri facias, which commands the sheriff to levy the debt off the defendant's goods and chattels. We readily, comprehend how a sale on a judgment, a mortgage, or an order of the orphans' court, passes the land freed from dower; but the reason is not so obvious why a sale under a testamentary power, created in good faith, for the benefit of creditors, should do so. It is because the law makes a decedent's land a fund for payment of his debts by giving the creditors a lien on it, which might be enforced by judicial process, and would extinguish the widow's dower in it. It would come to the same thing in the end, and she is consequently not injured by a process substituted by the husband to produce exactly the same result.' It thus appears that the right of dower in Pennsylvania does not differ in nature of extent from the right of dower at common law, except so far as the local law has made it a chattel for the payment of debts of the husband, either by converting it into personalty, in his life-time, by virtue of the effect attributed by that law to a judgment recovered against him or a mortgage executed by him, either of which could only be enforced in that state by a levy of execution in common form; or by giving his creditors, after his death, a lien upon the whole title in the land. The state court has accordingly constantly held that, with these exceptions, the right of dower is as much favored in Pennsylvania as elsewhere; that the old decisions are not to be extended, and that neither an absolute conveyance by the husband, nor an assignment by him for the benefit of creditors, whether executed voluntarily or under a requirement of the insolvent law of the state, impairs the wife's right of dower. Kennedy v. Nedrow, 1 Dall. 415, 417; Graff v. Smith and Kirk v. Dean, above cited; Killinger v. Reidenhauer, 6 Serg. & R. 531; Riddlesberger v. Mentzer, 7 Watts, 141; Keller v. Michael, 2 Yeates, 300; Eberle v. Fisher, 13 Pa. St. 526; Helfrich v. Obermyer, above cited; Worcester v. Clark, 2 Grant, 84. In Worcester v. Clark, just cited, it was held that the sale of a bankrupt's real estate by his assignee under the bankrupt act of August 19, 1841, c. 9, did not divest the widow's right of dower. It is true that the decision was put upon the ground that the right of dower was saved by the proviso, inserted in the second section of that act, that 'nothing in this act contained shall be construed to annul, destroy, or impair any lawful rights of married women which may be vested by the laws of the states respectively, and which are not inconsistent with the provisions of the second and fifth sections of this act;'and that the judge delivering the opinion said that, were it not for that proviso, he should have no difficulty in holding that a sale in pursuance of a decree in bankruptcy would, like a sheriff's sale by virtue of either a judgment or a mortgage, bar dower. But the decision is significant as evidence that by the law of Pennsylvania a right of dower is 'a lawful right, valid by the law of the state,' and as treating the question whether it was divested by proceedings in bankruptcy as depending upon a true construction of the bankrupt act. Upon this question of construction we are not bound by the opinion of the state court, and have no hesitation in disapproving the dictum, and in holding that the proviso relied on was not in the nature of an exception to or restriction upon the operative words of the act, but was a mere declaration, inserted for greater caution, of the construction which the act must have received without any such proviso, and that the omission of the proviso in the recent bankrupt act does not enlarge the effect of the assignment or of the sale in bankruptcy, so as to include lawful rights which belong not to the bankrupt but to his wife. The result is that, so far as this case depends upon the construction of the bankrupt act of the United States, this court is of opinion that there is nothing in that act, or in the proceedings under it, to bar the wife's right of dower in lands of which her husband was seized during the coverture; and that, so far as it depends upon the law of Pennsylvania, the decision of the supreme court of that state in this case, reported in 87 Pa. St. 513, is in accord with all the previous adjudications of that court, and is strong, if not conclusive, evdence against the plaintiff in error. It may be added that this decision is in conformity with one made 12 years ago by Judge CADWALADER in the district court of the United States for the eastern district of Pennsylvania. In re Angier, 10 Amer. Law Reg. (N. S.) 190; S. C. 4 N. B. R. 619. Judgment affirmed.

109.US.221

In the absence of fraud, a compromise made betiveen the city authorities of New Orleans and a railroad company, respecting a disputed grant of a user of part of the city property, known as the Batture, for railroad purposes, was sustained, as authorized by the laws of Louisiana. Under the statutes of that State, the city authorities had the right to make the compromise at the time it was made, and it remained valid, notwithstanding the powers conferred upon the board of liquidation of the city debt of New Orleans, by the legislature.

Prior to the year 1820 disputes had arisen between the city of New Orleans and certain proprietors of riparian estates as to the ownership of the batture or alluvion in front of the city on the Mississippi river. In compromise of these disputes the proprietors surrendered to the city all their claims to property within certain boundaries. In 1869 the legislature of Louisiana undertook, by act No. 26 of 1869, to grant to the New Orleans, Mobile & Chattanooga Railroad Company, now by change of name the New Orleans, Mobile & Texas Railroad Company, 'the right to locate, construct, maintain, and use a passenger depot, with offices and apartments suitable for its legitimate business, upon that part or portion of the levee or streets and grounds in the city of New Orleans bounded by Canal, Delta, and Poydras streets, and a line parallel to and 150 feet easterly from Delta street; and for the construction of a freight depot, and for other purposes of its legitimate business, to inclose and occupy the blocks of grounds, parts of streets, and portion of levee in said city bounded by Girod, Water, and Calliope streets and a line parallel to and 290 feet easterly from Water street, provided said company shall not inclose or occupy that part or portion of the blocks of ground within said last limits which is the private property of individuals until said company has acquired the title thereto; and said company shall thereafter, if requested by said city, extend the wharf in front thereof equal with the present wharf in front of the northerly corner of the outer block within said limits, recently sold by said city and now owned by said company. The validity of this act was disputed by the city, and suits were brought by the company in a state court to establish the grant. These suits resulted in judgments, which, as the company claimed, confirmed its title. The city denied that such was the effect of the judgments, and attempted to tear down and destroy the fences and other structures of the company. Thereupon the company, on the eighth of July, 1874, brought another suit to enjoin the city. This suit resulted in a decree by the circuit court of the United States for the district of Louisiana on the eleventh of June, 1878, allowing the injunction prayed for. From that decree the city, on the thirtieth of July, 1878, appealed to this court, and the appeal was docketed on the sixteenth of December following. During the pendency of the suit in this court the legislature of Louisiana passed act No. 133 of 1880, creating a board of liquidation of the city debt, 'for the purpose of liquidating, reducing, and consolidating the debt of the city of New Orleans.' By this act it was provided that the board thus created should 'have exclusive control and direction of all matters relating to the bonded debt of the city of New Orleans,' and authority to issue new bonds of the city, to be exchanged for old at the rate of fifty cents of new for one dollar of old. Section 5 of that act is as follows: 'Sec. 5. That it shall be the duty of the city authorities, as soon as possible, after the organization of the board of liquidation of the city debt, to turn over and transfer to the said board all the property of the city of New Orleans, both real and personal, not dedicated to public use; and the board of liquidation shall be, and is hereby, empowered and authorized to dispose of said property on such terms and conditions as may be deemed favorable; the proceeds of such sale or sales to be deposited with the fiscal agents of the board at credit of 'city debt fund." No new bonds were ever issued by the board of liquidation under his authority, and the city never actually transferred to the board any of the batture property. Neither did the board ever assume control of such property. A reason given for this by the president of the board, and suggested by the counsel for the appellant in his argument, is that fears were entertained that if property not dedicated to public uses should be actually separated and set apart from that which was, judgment creditors of the city might levy their executions and subject such as was thus shown not to be required for public use to the payment of their judgments. On the twenty-third of June, 1882, act No. 20 of 1882 was passed by the legislature of Louisiana, 'to incorporate the city of New Orleans, provide for the government and administration of the affairs thereof, and to repeal all acts inconsistent and in conflict with its provisions.' Sections 8, 28, and 78 of this act are as follows: 'Sec. 8. The council shall also have power * * * to authorize the use of streets for horse and steam railroads, and to regulate the same; to require and compel all lines of railway or tramway in any one street to run on and use one and the same track and turn-table; to compel them to keep conductors on their cars, and compel all such companies to keep in repair the street bridges and crossings through or over which their cars run; to lay off and sell in lots or squares so much of the batture, from time to time, as may not be required for public purposes; but the right of accretion or to future batture shall never be sold. 'Sec. 28. That all the rights, titles, and interest of the city of New Orleans, as now existing, in and to all lands, tenements, hereditaments, bridges, ferries, streets, roads, wharves, markets, stalls, levees, and landing places, buildings, and other property of whatever description, and wherever situated, and with all goods, chattels, moneys, effects, debts, dues, demands, bonds, obligations, judgments and judgment liens, actions and rights of actions, books, accounts, and vouchers, be, and they are hereby, vested in the city of New Orleans, as incorporated by this act. 'Sec. 78. All laws in conflict, inconsistent, or contrary to the provisions of this act, be, and the same are hereby, repealed.' By act No. 58 of 1882, passed June 30, 1882, entitled 'An act to authorize the city of New Orleans to renew and extend payment of her outstanding bonds, other than premium bonds, to provide the rate of interest on the bonds as reduced or extended, and authorize the levy of a tax to pay the same,' the board of liquidation was 'authorized and empowered to extend the bonded indebtedness of said city, other than premium bonds, outstanding at the passage and promulgation of this act, for the period of forty years from January 1, 1883, at a rate of interest not exceeding six per cent.' On the fifth of July, 1882, act No. 81 of 1882 was passed and approved, a copy of which is as follows: 'Act No. 81 of 1882, entitled an act to authorize the city of New Orleans, in the sale or lease of franchise or right of way for street railroads, or other privilege, to apply the price paid for the same in the performance of works of public improvements of a permanent character, such as paving streets, embellishing parks, etc. 'Whereas, notice as required by article 48 of the constitution has been given of the intention to apply for the passage of this act; therefore, 'Section 1. Be it enacted by the general assembly of the state of Louisiana, that hereafter, whenever the city of New Orleans, through the proper authorities, shall contract with private corporations or individuals for the sale or lease of public privileges or franchises, such as the rights of way for street railroads, or for other public undertakings within her legal power and control, the price paid for the sale or lease of public privileges or franchises shall be applied by said city in the performance of works of public improvement of a permanent character, such as paving streets, embellishing park, etc. 'Sec. 2. Be it further enacted, that all laws or parts of laws, and especially so much of section 10 of act No. 31, acts of 1876, known as the premium-bond act, and by section 5 of act No. 133, acts of 1880, as may be in conflict herewith, be, and the same are hereby, repealed.' Such being the legislative authority of the different departments of the city government, a resolution was passed by the city council on the eleventh of October, 1882, accepting a proposition of the railroad company to compromise and settle all the matters in controversy in the suit pending in this court on appeal, by which the company was to pay the city $40,000, and the city was to dismiss its appeal and acquiesce in the decree of the circuit court. The negotiations which resulted in this compromise began as early as August 1, 1882, when the council appointed a committee to confer with the railroad company on the subject. The money stipulated for in the compromise was paid on the eleventh of October, 1882, and on the same day an agreement of compromise, dismissing the appeal and acquiescing in the decree appealed from, was duly signed and executed by the mayor of the city under the authority of the council. On the next day the board of liquidation notified the city authorities that it claimed the fund realized from this settlement. On the thirteenth of October, a resolution of the board was adopted to the effect 'that the $40,000 now in the hands of the administrator of finance be enjoined, and the attorney be directed to institute legal proceedings at once.' On the seventeenth of October, the resolution of the thirteenth was so far modified as 'to authorize the attorney of the board to take such steps as, in his judgment, are requisite to set aside the agreement of compromise; * * * to oppose the dismissal of the appeal, and to hold the fund decreed from said compromise so as to restore it if the compromise is annulled, or to claim it for the board if said compromise becomes a finality.' On the tenth of October, 1882, the suit pending in this court was continued at the request of the parties, but at a later day in the term the railroad company appeared, and presenting a stipulation for the dismissal of the appeal, signed by the city attorney of New Orleans, pursuant to the terms of the compromise, asked to have the appropriate order entered upon that stipulation. Thereupon the board of liquidation came and resisted the entry of any such order on the ground that during the pendency of the appeal authority over the subject-matter of the controversy had been transferred from the city council to the board, and that the compromise which had been effected was not binding. The board also asked leave to prosecute the appeal in the name of the city. It was conceded that the city council made the compromise which was claimed, and that the railroad company was entitled to a dismissal of the appeal if the council had authority to do what was done, and the compromise was fair. This court thought the dispute as to the authority of the council presented questions too important to be settled summarily on motions, and ordered the motions to be continued until the present term, when the appeal would be dismissed in accordance with the stipulation, unless the board should begin and prosecute without unnecessary delay, in some court of competent jurisdiction, an appropriate suit to set aside the compromise. This suit was brought for that purpose, and the circuit court for the eastern district of Louisiana, on full consideration, entered a decree dismissing the bill. To reverse that decree this appeal was taken, and the single question to be decided is whether, upon these facts, the board of liquidation is entitled to the relief it has prayed for. There is no pretense of fraud either on the part of the city council or the railroad company. So far as appears the negotiations were carried on by both parties openly and without any attempt at concealment. The board of liquidation does not even allege that it was ignorant of what was being done. The whole case, therefore, turns on the legislative authority of the city council to bind the city by a compromise of the suit, and about this we have no doubt. Under act No. 133 of 1880 the city authorities were only required to turn over to the board such property as was not dedicated to public use. It was substantially conceded on the argument that if the railroad was removed, the property between Poydras and Canal streets would immediately be put to such use, and it is by no means certain that this may not be true of some or all the rest. All except that between Poydras and Canal streets has been formed into squares, but the control of it was never assumed by the board. The fact that fears were entertained that if such control should be assumed the property would be levied on and sold under executions against the city, is very persuasive evidence to show that it was apparently property dedicated to public use, though occupied to some extent by the railroad company for its tracks, and passenger and freight stations. But, however this may be, we are entirely satisfied that under the legislation of 1882 the city council had full authority to bind the city by a compromise of the pending suit. Confessedly, no bonds were ever issued, or obligations incurred, by the board of liquidation under act No. 133 of 1880, and on the twenty-third of June, 1882, the city council was, in express terms, authorized to lay off and sell, in lots or squares, so much of the batture, from time to time, as might not be required for public purposes. Then, on the fifth of July, only a few days later, the city was authorized, through its proper authorities, to contract with private corporations for the sale or lease of public privileges or franchises, such as rights of way for street railroads, or for other public undertakings within her legal power and control; the price paid to be applied by the city 'in the performance of works of public improvements of a permanent character.' All this is entirely inconsistent with the provisions of section 5 of act No. 133 of 1880; at least, so far as the control and disposition of batture property are concerned. The repealing sections of these acts, therefore, operated directly on the powers of the board over the subject-matter of this compromise, and left the city council free to act in the premises. It must be borne in mind that all the legislation involved relates to the distribution of the powers of the city government among the different departments. As the question is presented to us no contract rights need protection. Whether the board of liquidation is a corporation that can sue in its own name or be sued is not at all important, for, even if it be a corporation, it is in effect nothing more than one of the departments of the city government charged with the duty of controlling and directing matters relating to the bonded debt. Even though the effect of section 5 of the act of 1880 was to pledge the property of the city not dedicated to public use to secure the payment of the public debt, there was nothing to prevent the legislature from revoking the pledge until contract rights had in some way intervened. It is agreed that no new bonds were ever issued by the board under the authority or upon the faith of the act of 1880, before the new charter was granted, and act No. 81 of 1882 was passed before anything was done in the way of extending or renewing bonds under act No. 58 of the same year. The result of the whole legislation is, therefore, that in 1880 the board of liquidation was created and given power to dispose of and sell the property of the city not dedicated to public uses, and out of the proceeds pay the public debt; but, before any new rights had accrued under this power, the control and disposition of batture property not needed for public purposes was withdrawn from the board and given to the city council, and the proceeds of the sales and leases of public privileges and franchises were appropriated to the payment of the expenses of public improvements which were permanent in their character. Whether the money realized from this compromise is to be applied to the payment of the public debt or to make permanent improvements, we do not undertake to decide, but that the compromise itself was within the departmental authority of the city council, and not subject to the control of the board of liquidation, is to our minds clear. It follows that the circuit court was right in refusing to set aside the compromise, and its decree to that effect is affirmed.

109.US.621

A recovered judgment June 11th, 1881, against a township in Cherokee County, Kansas, on bonds issued in payment of a subscription by the township to stock in a railway company. The township had no trustee then -or since. An alternative writ of mandamus having been sued out to compel the board of county commissioners for the county to levy a tax sufficient to pay the judgment, and to compel the county clerk to extend the tax when levied, and to compel the county treasurer to colleet it when extended, and to pay it to A when collected, judgment was entered for a peremptory writ in accordance therewith. On appeal by the couity commissioners, Held : 1. That by the statutes of Kansas which were in force at that time, it was made the duty of the board of county commissioners of Cherokee county in consequence of the vacancy in the office of trustee of the township, to levy a tax sufficient to pay the judgment recovered by A. 2. That the alternative writ of mandamus was not issued prematurely. 3. That the clerk and treasurer having taken no appeal, the writ of error brought up for review only the objections of the board of comm&sioners.

On the eleventh of June, 1881, William C. Wilson, the defendant in error, recovered a judgment in the circuit court of the United States for the district of Kansas, against the township of Salamanca, Cherokee county, for $48,920.31. At that time the office of trustee of the township was vacant, and it has not been filled since. On the twenty-fourth of July, 1882, Wilson sued out of the same court an alternative writ of mandamus, returnable on the ninth of October, 1882, requiring the board of county commissioners of the county 'to forthwith levy upon the taxable property * * * in said township * * * a tax sufficient in amount for the payment of the judgment * * * and cause the same to be certified to the county clerk of said county,' and requiring the clerk of the county 'to extend said tax forth with on the tax books of said county and deliver the same with said tax so levied and extended thereon to the county treasurer of said county;' and the county treasurer forthwith, after the tax books shall have been delivered to him by the clerk, 'to proceed to collect said taxes and pay the same, when so collected, to said William C. Wilson, in payment of said judgment, interest, and costs,' or show cause why they had not so done. This writ was served on the individual members of the board of county commissioners, and on the clerk and treasurer of the county, on the twenty-sixth of July. On the twenty-seventh of November, 1882, the respondents filed a motion to quash the writ, and on this motion raised two questions, to-wit: (1) Whether the writ was not sued out prematurely; and, (2) whether, under the statutes of Kansas, the county commissioners could legally do that which the writ sought to coerce them into doing. Before this motion was disposed of, the individual members of the board of county commissioners filed an answer, and, after the testimony was closed, Wilson moved for a peremptory writ. Upon the hearing of this motion and the motion to quash, the judges holding the court were divided in opinion on the following questions: (1) Whether said motions respectively should be sustained or overruled; (2) whether it is the legal duty of the board of county commissioners of Cherokee, under the statutes of the state of Kansas, to levy the tax as commanded by the alternative writ of mandamus herein, for the payment of the judgment of the relator against Salamanca township, in said county, based upon interest coupons detached from bonds issued by said township to pay shares of capital stock in a railroad company, which bonds were voted under the act of the general assembly of the state of Kansas, entitled 'An act to enable municipal townships to subscribe for stock in any railroad and to provide payment of the same,' approved February 25, 1870, and issued September 1, 1872, under the act of said general assembly, entitled 'An act to authorize counties, incorporated cities, and municipal townships to issue bonds for the purpose of building bridges, aiding in the construction of railroads, water-powers, or other works of internal improvement, and providing for the registration of such bonds, and the repeal of all laws in conflict therewith,' approved March 2, 1872. The circuit judge was of opinion that the motion to quash should be overruled, and that for the peremptory writ granted. A judgment awarding the writ was thereupon entered, and the questions as to which the difference of opinion arose were duly certified. The case is now here on a writ of error for an answer to these questions. The act of February 25, 1870, authorized the township to subscribe to the capital stock of the Memphis, Carthage & Northwestern Railroad Company, and to issue bonds to pay the subscription. That was settled by the judgment against the township, on account of which the mandamus is asked. Every township in Kansas is a body corporated and politic. Section 1, (5965,) Dassler's Comp. Laws, 977. The trustee is the principal officer of the township, and his duty is, among other things,—section 22, (5988,) Dassler's Comp. Laws, 980,—to 'superintend all the pecuniary concerns of his township,' and, at the July session of the board of county commissioners, annually, with the advice and consent of the board, to levy a tax on the property of the citizens of the township, for township, road, and other purposes, and report the same to the county clerk for entry on the tax roll, 'but, in a failure of such trustee and commissioners to concur, then the board of county commissioners shall levy such township, road, and other taxes.' The board of county commissioners are required by law to meet in regular session on the first Monday in July of each year. Section 13, (1397,) Dassler's Comp. Laws, 274. They must also meet on the first Monday day in August in each year, to estimate and determine the amount of money to be raised by tax for all county purposes, and all other taxes which they shall be required by law to levy. Section 83, (5886,) Dassler's Comp. Laws, 956. The county clerk must make up the taxlist immediately after the first Monday in August, and deliver it to the treasurer for collection on or before the first Monday in November. Section 84, Dassler's Comp. Laws. Section 6 of the act of February 25, 1870, under which the bonds involved in this proceeding were issued, is as follows: 'Sec. 6. Whenever any bonds shall be issued in pursuance of the foregoing provision, it shall be the duty of the board of county commissioners annually to proceed to levy and collect a tax on all the taxable property in such township sufficient to pay the interest on such bonds as the same becomes due, and to create a sinking fund sufficient to pay said bonds at maturity; and such tax shall be collected in cash or the couponse of such bonds which may be due; and such tax shall be collected as county and township taxes are collected, and paid out by the treasurer, on presentation of the coupons or bonds, when due; and the county clerk, treasurer, and other officers who may be required to do any act under the foregoing provisions, shall be entitled to the same fees as are allowed by law for similar services, and liable to the same fines and penalties for non-compliance.' The act of March 2, 1872, referred to in the second question certified, was repealed, so far as it affects this case, by the act of March 9, 1874, (Sess. Laws 1874, p. 41,) sections 7 and 13 of which are as follows: 'Sec. 7. It shall be the duty of the proper officers of any county, city, or township, in which bonds have been heretofore voted for any of the purposes mentioned in the act to which this act is amendatory, annually, at the time when other taxes are levied, to levy and cause to be collected a sufficient tax to pay the interest on all such bonds as the same shall become due, and also for the purpose of creating a sinking fund for the final redemption of such bonds. * * * 'Sec. 13. It will be the duty of the board of county commissioners of any county in which railroad bonds shall be issued under the provisions of this act, annually, at the time when other taxcs are levied, to levy and cause to be collected, as other taxes are levied and collected, a sufficient tax to pay the interest on all bonds issued for railroad purposes by such county, or any township therein, as the same falls due, and also for the purpose of creating a sinking fund for the final redemption of such bonds.' These statutes were in force when the alternative writ of mandamus was sued out in this case. The judgment against the township was rendered on the eleventh of June, 1881. It therefore became the duty of the proper officers to levy the tax at the time fixed by law for that purpose in the year 1881. No such levy was made, and, consequently, all officers whose duty it was to make the levy were in default when the alternative writ was sued out in 1882. If follows that the writ was not prematurely issued if it was the duty of the board of county commissioners to make the levy when there was no trustee of the township. The fact that the board may not have had actual notice of the rendition of the judgment until November, 1881, does not affect their legal obligation to make the levy. It may be accepted as an excuse for not performing that duty, but it does not relieve them from the consequences of their legal default. The township trustee is in law the principal officer of the township. It is his duty to superintend all the pecuniary concerns of the township, and, with the advice and concurrence of the board of county commissioners, to levy all taxes required to meet the liabilities of the township not otherwise provided for by law; but, if he fails in this duty, the board must, as we think, make the necessary levies for him. To that extent the board is charged with the duty of caring for the interests of the township. Such is the fair meaning of section 22, (5988.) Under that section the township trustee is required to attend the meeting of the board in July of each year and lay before them his recommendations for taxes to be levied. As his levy can only be made with the concurrence of the board, there must necessarily be an inquiry by the board into the pecuniary concerns of the township, so as to determine whether what is recommended by the trustee is enough or more than enough to meet its liabilities for the current year. If the trustee has omitted a tax for any prupose, which the law requires to be levied, it is the clear duty of the board to make the levy themselves if the trustee will not. The trustee and the commissioners are made in law a tribunal to meet in July in each year to estimate and determine what taxes are required in the township for the year. If both the trustee and commissioners are present at the meeting and agree as to what should be done, the trustee reports the tax to the county clerk; but if the trustee is not present, or being present does not agree with the commissioners, the opinion of the commissioners prevails, and they may proceed without him. This is the evident purpose of the provision that, 'in failure of such trustee and commissioners to concur,' the board shall make the levy. The tax to pay the judgment in this case was one of the taxes to be levied on the property of the township to pay a township debt. It is true that this section of the law was enacted in substance years before the bonds involved in this suit were issued, but unless it has been in some was superseded by reason of the special acts connected with the particular obligation of these bonds, it governs this case. So far as we are advised, if the tribunal, consisting of the trustee and county commissioners, are relieved from their general supervision of the needs of the township in the way of taxation for these bonds, it is only to put that duty on the board alone. If on the board, it was clearly their duty to levy the tax without the trustee at the meeting in August, 1881, because the legal liability of the township had then been judicially established. If, however, it was a matter in respect to which the trustee should act conjointly with them, both they and the trustee were in default in July, 1881. In any view of the case, the obligation to levy the tax had been imposed on the county commissioners when the alternative writ was sued out, and they have shown no good cause why the levy was not made. The board of county commissioners have alone brought this writ of error. So far as appears, the clerk and treasurer are satisfied with what has been done in reference to them. The board are in no condition to complain for the other officers, because, under the law, they must levy the tax before the others can act, and, if the levy is made, the duties of the clerk and treasurer are purely ministerial. The whole proceeding depends on the duty of the board to levy the tax. We conclude, therefore, that the motion to quash should have been overruled, and the motion for judgment sustained. The first question is answered accordingly. The second question is answered in the affirmative. As the judgment was in accordance with these answers it is affirmed.

109.US.65

1. The court adheres to the rulings in Ex paite Siebold, 100 U. S. 371, and Ex parte Clarke, 100 U. S. 399, that §§ 5512 and 5515 Rev. St. relating to violations of duty by officers of elections are not repugnant to the Constitution of the United States, and holds them to be valid. 2. Where a defendant pleads not guilty to an indictment, and goes to trial without making objection to the mode of selecting the grand jury, the objection is waived ; even though a law unconstitutional, or assumed to be unconstitutional, may be followed in making the panel. 8. An objection to the qualification of grand jurors, or to the mode of summoning or empanelling them, must be made by a motion to quash, or by a plea in abatement, before pleading in bar.

The indictment against the defendants in this case was for misconduct as election officers at an election held in Florida for a representative to congress, in stuffing the ballot-box with fraudulent tickets, and abstracting tickets which had been voted. In impaneling the grand jury which found the indictment, four persons, otherwise competent, were excluded from the panel for the causes mentioned in section 820 of the Revised Statutes, which grounds are, in substance, voluntarily taking part in the rebellion, and giving aid and comfort thereto. The exclusion of these persons for this cause appears by an amendment of the record, made nune pro tunc, showing what took place; but no objection was taken to the indictment or proceedings on that account until after a plea of not guilty, and a conviction, when the objection was first taken on motion in arrest of judgment. The indictment was founded upon sections 5512 and 5515 of the Revised Statutes, and the constitutionality of those sections was called in question, as well as that of section 820. The judges having disagreed upon the motion in arrest of judgment, certified up the following questions for the determination of this court, namely: (1) Whether sections 5512 and 5515 of the Revised Statutes of the United States, on which such indictment was founded, are repugnant to and in violation of the constitution of the United States; (2) whether section 820 of the Revised Statutes of the United States is repugnant to and in violation of the constitution of the United States; (3) whether judgment of this court could be rendered against the defendants on an indictment found by a grand jury impaneled and sworn under the section aforesaid; and (4) whether the indictment aforesaid charges any offense for which judgment could be rendered against the defendants in this court under the constitution and laws of the United States. The question of the validity of sections 5512 and 5515 has already been decided by this court in the cases of Siebold and Clarke, 100 U. S. 371 and 399, and was determined in favor of their validity. As to those sections, therefore, the answer must be in the negative, namely, that they are not repugnant to, nor in violation of, the constitution of the United States. The second question, as to the constitutionality of the 820th section of the Revised Statutes, which disqualifies a person as a juror if he voluntarily took any part in the rebellion, is not an essential one in the case; inasmuch as, by pleading not guilty to the indictment and going to trial without making any objection to the mode of selecting the grand jury, such objection was waived. The defendants should either have moved to quash the indictment or have pleaded in abatement, if they had no opportunity, or did not see fit, to challenge the array. This, we think, is the true doctrine in cases where the objection does not go to the subversion of all the proceedings taken in impaneling and swearing the grand jury, but relates only to the qualification or disqualification of certain persons sworn upon the jury or excluded therefrom, or to mere irregularities in constituting the panel. We have no inexorable statute making the whole proceedings void for any such irregularities. Chitty, in his work on Criminal Law, (vol. 1, p. 307,) says: 'It is perfectly clear that all persons serving upon the grand jury must be good and lawful men; by which it is intended that they must be liege subjects of the king, and neither aliens nor persons outlawed even in a civil action; attainted of any treason or felony; or convicted of any species of crimen falsi, as conspiracy or perjury, which may render them infamous. And if a man who lies under any of these disqualifications be returned, he may be challenged by the prisoner before the bill is presented; or, if it be discovered after the finding, the defendant may plead it in avoidance, and answer over to the felony; for which purpose he may be allowed the assistance of counsel, on producing in court the record of the outlawry, attainder, or conviction on which the incompetence of the juryman rests.' This is, undoubtedly, the general rule as to the manner in which objection may be taken to the personnel of the grand jury, though in this country a motion to quash the indictment may be made instead of pleading specially in abatement. The requirement of answering over to the felony in connection with the plea in abatement is for the benefit of the accused, in order that he may not be concluded on the merits, if he should fail in sustaining his special plea,—a precaution which probably would not be necessary in our practice. By an English statute, passed in the eleventh year of Henry IV., it was declared that indictments made by persons not returned by the sheriff, or by persons nominated to him, or who were outlawed or had fled to sanctuary for treason or felony, should be void, revoked, and annulled. On this statute it was held that if any such persons were on a grand jury which found an indictment, it made the whole void, and if the matter appeared on the record, or in the proceedings of the same court, advantage might be taken of it on motion in arrest of judgment, or even on the suggestion of an amicus curice; but if it did not appear on the record of the cause, or in the records of the same court, the better opinion was that it could only be pleaded in abatement, or raised by motion to quash. Hawkins says: 'If a person who is tried upon such an indictment take no exception before his trial, it may be doubtful whether he may be allowed to take exception afterwards, because he hath slipped the most proper time for it; except it be verified by the records of the same court wherein the indictment is depending, as by an outlawry in the same court of one of the indictors,' etc. Hawk. bk. 2, c. 25, § 27. In Bac. Abr. (Juries, A) it is said that the court need not admit of the plea of outlawry of an indictor, unless he who pleads it have the record ready, or it be an outlawry of the same court; and it is added, as the better opinion, that no exception against an indictor is allowable, unless the party takes it before trial. Chitty lays down the same rule. 1 Crim. Law, 307, 308. Lord Chief Justice HALE, speaking of what the caption ought to contain, among other things, says: 'It must name the jurors that presented the offense, and therefore a return of an indictment or presentment per sacramentum, A. B., C. D., et aliorum, is not good, for it may be the presentment was by a less number than 12, in which case it is not good, (H. T. 41 Eliz. B. R. Croke, No. 16, Clyncard's Case, 654;) and it seems to me that all the names of the jurors ought to be returned, for the party indicted may have an exception to some or one of them, as that he is outlawed, in which case the indictment may be quashed by plea, though there be 12 besides without exception, for possibly that one, who is not legalis homo, may influence all the rest, and so vitiate the whole indictment.' All these authorities tend to the same point, namely, that the proper mode of taking objection to the personnel of the grand jury, even under the statute referred to, when the matter does not appear of record, is by plea in abatement. If, under the operation of so stringent a statute as that of 11 Hen. IV., the general rule was that the objection to the constitution of the grand jury must be taken before trial, and could only be taken afterwards when it appeared on the record, much more would it seem to be requisite that all ordinary objections based upon the disqualification of particular jurors, or upon informalities in summoning or impaneling the jury, where no statute makes the proceedings utterly void, should be taken in limine, either by challenge, by motion to quash, or by plea in abatement. Neglecting to do this, the defendant should be deemed to have waived the irregularity. It would be trifling with justice, and would render criminal proceedings a farce, if such objections could be taken after verdict, even though the irregularity should appear in the record of the proceedings. In most cases it could not appear in a record properly made up; but, if appearing at all, it would require (as in the present case) a special certificate of the court analogous to a bill of exceptions, or a case stated, not constituting a part of the true record. But even if it should appear upon the record as a proper part thereof, the fact of pleading to the merits and going to trial without taking the objection would also appear, and would amount in law to a waiver of the irregularity. If it could be taken advantage of on a motion in arrest of judgment, it would be a good ground of reversal on error, and all the proceedings of a long term might be rendered nugatory by admitting a person to the grand jury or excluding a person from it, without the matter being called to the attention of the court; whereas, if the objection were taken in limine, the irregularity might be corrected by reforming the panel or summoning a new jury. These remarks apply with additional force where the objection is not to the disqualification of jurors who are actually sworn upon the panel, but to the exclusion, or excuse, of persons from serving on the panel. A disqualified juror placed upon the panel may be supposed injuriously to affect the whole panel; but if the individuals forming it are unobjectionable, and have all the necessary qualifications, it is of less moment to the accused what persons may have been set aside or excused. The present case is of the latter kind. No complaint is made that any of the grand jurors who found the indictment were disqualified to serve, or were in any respect improper persons. It is only complained that the court excluded some persons for an improper cause; that is, because they labored under the disqualification created by the 820th section of the Revised Statutes, which is alleged to be unconstitutional. It is not complained that the jury actually impaneled was not a good one; but that other persons equally good had a right to be placed on it. These persons do not complain. If their right to serve on the grand jury was improperly infringed, perhaps they might complain of being excluded. That is another matter. Or, perhaps, the defendants, if correct in their assumption that the law is unconstitutional, and that the court was governed by an improper rule in excluding persons under it, might have had the benefit of the error by moving to quash the indictment, or by pleading in abatement. But passing by these proper modes of taking the objection, they waited until they had been tried and convicted on a plea of not guilty, and then moved in arrest of judgment. We think they were too late in raising the objection. Some importance is attached to the fact that the court followed an unconstitutional law, or one assumed to be such. We do not see that this is in anywise different from the case in which the court misconstrues the law. The result is the same: certain persons, under a misconception of the court, are excluded from the grand jury who are qualified to serve on it; but the jury as actually constituted is unexceptional in every other respect. In either case, whether the court is mistaken as to the validity of a law, or as to its interpretation, the objection relates so little to the merits of the case that it ought to be taken in the regular order and due course of proceeding. There are cases, undoubtedly, which admit of a different consideration, and in which the objection to the grand jury may be taken at any time. These are where the whole proceeding of forming the panel is void; as where the jury is not a jury of the court or term in which the indictment is found, or has been selected by persons having no authority whatever to select them; or where they have not been sworn; or where some other fundamental requisite has not been complied with. But there is no complaint of this kind in the present case. The complaint simply relates to the action of the court in excluding particular persons who might properly have served on the jury. We do not think this vitiated all the proceedings so as to render them absolutely null and void. It might have sufficed to quash the indictment if the objection had been timely and properly made. Nothing more. We think that this conclusion is the result not only of the English but of the better American authorities. Mr. Wharton, in his section on the 'Disqualification of Grand Jurors, and how it may be excepted to,' begins by stating the general rule that irregularities in selecting or impaneling the grand jury, which do not relate to the competency of individual jurors, may usually be objected to by challenge to the array, or motion to quash; and this must be before the general issue. Crim. Pl. & Pr. (8th Ed.) § 344. He then shows that in some states it has been held that objections to disqualification of individual jurors can only be taken by challenge, and not by motion to quash or by plea; but that in others the motion to quash, as well as the plea, is allowed; the latter rule being more generally followed, and being more in accordance with the English law. He then adds: 'Ordinarily, after the general issue has been pleaded objections are too late; and when the objection goes to the manner of drawing it should be taken by challenge to the array. * * * But on principle, in those cases in which the defendant is surprised, and had no opportunity to take exception until after the finding of the bill, he should he allowed to take advantage of any irregularity by plea.' Section 350. We apprehend that the rule last stated is the correct one. But in section 353 it is added that at common law, if the objection appears of record and there be no statutory impediment, a motion in arrest of judgment may be entertained. This last position we do no not think is well sustained. As we have seen, it was by force of the statute of 11 Hen. IV. that objections might be taken after the trial in England; and the American cases referred to by Mr. Wharton do not sustain his observation. In Harden's Case, 2 Rich. 533, the motion in arrest of judgment was based on the ground that the grand jury was not such for the term at which the bill was found, and, of course, the proceedings were coram non judice. In other cases cited in support of the position, the motions were overruled. We think that the doctrine of waiver applies as well to cases where the objection appears of record as where it appears by averments; and that it applies to all cases of objection to the qualifications of jurors and to the mode of impaneling the jury; but does not apply to cases where the proceeding is wholly void by reason of some fundamental defect or vice therein. Brooke, Abr. Indict. 2; Seaborn's Case, 4 Dev. 305; Robinson's Case, 2 Parker, Crim. R. 308. In the case in Brooke, persons not legali homines were on the grand jury, and it was held that the objection ought to be pleaded before pleading to the felony. In Seaborn's Case it was held that, after conviction of murder, it was too late to take advantage of an error in constituting the grand jury, though it appeared in the record. In Robinson's Case, 2 Parker, Crim. R. 235, 308, 311, which was argued by able counsel in the supreme court of New York before Justices PARKER, WRIGHT, and HARRIS, no precept for summoning the grand jury had been issued by the district attorney to the sheriff as the law required, though the sheriff summoned them in the usual way. The court held that this omission did not affect the substantial rights of the prisoner, and that the objection could not be raised after trial and conviction. Many authorities were referred to in the opinion of the court delivered by Mr. Justice PARKER, and this general statement was then made: 'It seems to be well settled in most of the states that an objection to the qualification of grand jurors, or to the mode of summoning or impaneling them, must be made by a motion to quash or by a plea in abatement, before pleading in bar.' The subject is also discussed in Bishop, Crim. Proc. c. 60, where the same general rule is laid down; though with a reservation of some doubt as to cases where the objection appears of record. Sections 887, 888. As before stated, we think that it is the nature of the objection, rather than the fact of its appearing or not appearing on the record, which should decide whether it ought to be taken by a plea in abatement, or whether it may also be taken by motion in arrest of judgment; though, of course, it cannot be taken by such a motion unless it does appear of record. Being satisfied that the defendants could not raise the question of the constitutionality of section 820 by motion in arrest of judgment, it is not necessary, as before observed, to express any opinion on that point. It may be proper, however, to call attention to the singular position of that section. It was originally enacted as section 1 of the act passed June 17, 1862, entitled 'An act defining different causes of challenge, and prescribing an additional oath for grand and petit jurors in the United States courts.' 12 St. 430. At that time (1862) it was no doubt a very proper and necessary law; but after the rehabilitation of the insurgent states, the proclamation of general amnesty, and the adoption of the fourteenth amendment, guarantying equal rights to all citizens of the United States, there would seem to have been no just reason for the continuance of the law, especially as by far the largest portion of white citizens in the states lately in rebellion would be disqualified under it. Accordingly, by the fifth section of the act, commonly called the 'Enforcement Act,' passed April 20, 1871, (17 St. 15,) congress, after providing that in prosecutions under that act no person should be a grand or petit juror who should, in the judgment of the court, be in complicity with any combination or conspiracy punishable by the provisions thereof, repeal the said first section of the act of 1862; and the law remained in this state until the adoption of the Revised Statutes. For some unexplained reason the revisors imported the section back again into the Revised Statutes, (as section 820,) although it had not been in force for over two years. It is probable that the fact of its repeal was overlooked by congress when the Revision was adopted, and it is to be hoped that their attention will be called to it. In conclusion, to the third and fourth questions, certified by the court below, the answer will be in the affirmative; and it is so ordered.

108.US.74

A creditor, dealing with a debtor whom he may suspect to be in failing circumstances, but of which he has no sufficient evidence, may receive payment or take security without necessarily violating the bankrupt law. When such creditor is unwilling to trust a debtor further, or feels anxious about his claim, the obtaining additional security, or the receiving payment of the debt is not prohibited, if the belief which the act requires is wanting. Grant v. .NationalB ank, 97 U. S. 80, approved and followed.

This suit originated in a bill in equity brought in the district court by Stucky, as assignee of Melter, a bankrupt, against the bank and against Jacob Krieger, Sr., for the purpose of having two mortgages made by the bankrupt declared void, and the real estate covered by them sold free of the lien of those mortgages. The ground of this relief is the allegation that the mortgages were made by Melter when insolvent, and were preferences in contemplation of bankruptcy, void by the bankrupt law, and that, by virtue of the bankrupt proceedings commenced within two months after they were made, they are void. The case was decided in favor of the assignee in the district court, but on appeal the circuit court reversed this decree and dismissed the bill. It is shown that both mortgages were taken to secure renewal notes for pre-existing debts, one note and mortgage being made to the bank directly, and the other to Mr. Krieger, who was president of the bank, the note being indorsed by him to the bank. They were for $6,000 each. The whole matter turns upon the question whether Krieger, who acted almost alone for the bank, had reasonable ground to believe that Melter was insolvent at the time the mortgages were made. The district judge, who decided that he had such reasonable ground, does not seem to have given due weight to the principles of the case of Grant v. National Bank, decided by this court, and reported in 97 U. S. 80, a case which was fully considered, and which has since been followed by us as a leading one on the subject. That case establishes the doctrine that a creditor dealing with a debtor whom he map suspect to be in failing circumstances, but of which he has no sufficient evidence, may receive payment or security without violating the bankrupt law. 'He may be unwilling to trust him further; he may feel anxious about his claim and have a strong desire to secure it, yet such belief as the act requires may be wanting. Obtaining additional security or receiving payment of a debt under such circumstances is not prohibited by law.' In the case before us the testimony of Krieger himself, as the one who best knows the strength of the suspicion (if any) on which he acted, and what evidence was before him, must chiefly control. We have examined his deposition very carefully. We think it bears the impress of candor, and it negatives the idea that he had reasonable ground to believe Melter insolvent, or that he actually did believe it. The evidence, outside of this, as to the various estimates of the value of Melter's property and the amount of his debts, while it shows that Melter was probably insolvent, does not show that this was known to Melter himself or to Krieger, or that the latter had reasonable grounds to believe him so. It would serve no useful purpose to give in this opinion a full examination of all the evidence. It is sufficient to say that in looking it all over we concur with the circuit judge, and his decree dismissing the bill is affirmed.

107.US.437

1. In construing contracts, a court may look not only to their terms, but to their subject-matter and the surrounding circumstances, and avail itself of the same light which at the time of making them the parties possessed. 2. Under the contract sued on in this case, infra, p. 439, the United States was not bound to receive a greater quantity of oats than that which" is therein specifically mentioned.

The contention of the appellant is that under that clause of the contract sued on which provided as follows: 'said Merriam shall supply 600,000 pounds, more or less, of oats, * * * or such other quantity, more or less, as may be required from time to time for the wants of such station between the first day of July, 1877, and the thirty-first day of December, 1877, in such quantities and at such times as the receiving officer may require,'—he was bound to deliver, and the United States to receive, in addition to the 1,600,000 for which his bid was accepted, all the oats needed for the wants of the station between the dates mentioned. And as it appears from the finding of the court of claims that a large quantity of oats over and above that received from the appellant was received at Bismarck between the dates mentioned, under the contract made with Hall, and that appellant's offer to furnish a quantity of oats in addition to the amount specifically mentioned in his contract was declined, that a breach of his contract is shown, for which he is entitled to damages. It is contended on behalf of the United States that under the contract sued on the appellant was bound to deliver, and the United States to receive, 1,600,000 pounds of oats, and no more, unless required to do so by the quartermaster. The only question presented by the record is which of these two constructions of the contract is the true one. It is a fundamental rule that in the construction of contracts the courts may look not only to the language employed, but to the subject-matter and the surrounding circumstances, and may avail themselves of the same light which the parties possessed when the contract was made. Nash v. Towne, 5 Wall. 689; Barreda v. Silsbee, 21 How. 146; Shore v. Wilson, 9 Clark & F. *353, *555; McDonald v. Longbottom, 1 El. & El. 987; Munford v. Gething, 29 Law J. C. P. 110; Carr v. Mantefiore, 5 B. & S. 408; Brawley v. U. S. 96 U. S. 168. Thus, in the case of Doe v. Burt, 1 Term R. 701, where a lease had been made by the plaintiff to the defendant of part of a messuage, together with a piece of ground thereunto adjoining, which piece of ground was used as a yard, and beneath the yard was a cellar occupied by a third party under a lease previously granted to him by the plaintiff, and the occupant of the celler continued to reside in it and to pay rent to the plaintiff for three or four years after the latter had demised the yard to the defendant, but his lease having expired, and he having quitted the cellar, the defendant took possession of it, contending that the cellar had passed to him by the demise of the yard, the court held that parol evidence of the surrounding circumstances was admissible to show that it did not pass. Availing ourselves of the light thrown on the contract in this case by the circumstances under which it was made, we are of opinion that the construction claimed for it by the appellant cannot be sustained. The specific quantity of oats to be delivered at Bismarck, for which the circular for the information of bidders invited proposals, was 4,464,700 pounds. The appellant made bids for 6,400,000 pounds; 1,600,000 pounds of which were at the price of $2.23 7-16 per hundred pounds, 1,600,000 at $2.28 1/8 per hundred pounds, and the residue at still higher prices. His bid for 1,600,000 pounds at $2.23 7-16 per hundred pounds was the only bid made by him which was accepted. The bid of Hall was at the same time accepted for 2,620,000 pounds at $2.25 per hundred pounds, and contracts were made with him for the delivery of that amount. It thus appears that the lowest bids were accepted and contracts made in accordance therewith. The contracts made with both the appellant and Hall were identical in form. The bids accepted fell a little short of the entire quantity for which bids were asked. The appellant now insists that by reason of the clause in his second contract, by which, in addition to the specific quantity of oats therein mentioned, he agreed to supply such other quantity, more or less, as might be required for the wants of said station, and which also was found in the second contract made with Hall, the United States were bound to receive from him oats for which his bid was not accepted, and for the delivery of which the bid of Hall, lower than his own, was accepted. It is perfectly clear, from these circumstances, that the officers of the United States who had this matter in charge did not understand the contract with appellant as he now claims to construe it. In other words, they did not intend to contract with two different persons for twice the quantity of oats needed for the wants of the station. Nor did they intend, after making awards to two different bidders for specific quantities of oats, to disregard the awards and enter into contracts by which the higher bidder should supply all the oats. We think the facts found by the court of claims show also that the construction now claimed by the appellant could not have been his understanding of the contract when it was made. The advertisement calling for bids announced that they would be opened in the presence of bidders. The appellant bid to furnish 6,400,000 pounds of oats. His bid was accepted for only 1,600,000 pounds out of the 4,464,700 pounds for which bids were specifically invited. On the same day on which the contract sued on was executed, the same quartermaster executed two contracts with Hall for the oats, the furnishing of which had been awarded to him. It is not specifically found by the court of claims that the appellant knew that the bids of Hall for nearly all the oats needed at the station, not awarded the appellant, had been accepted, nor that he knew that contracts had been made with Hall for the delivery of the oats in accordance with the awards made to him. But he knew that his own bid was accepted for less than half the quantity for which bids were invited. He must have known, therefore, that he had a successful competitor in the biddings, and he must have known that a contract had been made with his successful competitor for the delivery of the oats, for which the bid of the latter was accepted; for the printed circular informed him that the bidder whose proposal was accepted would be required to enter into a contract to perform his bid, and he himself had been required to execute a contract to deliver the oats which it was awarded to him to furnish. These facts being known to appellant, he could not have understood the contract sued on, which was made on the same day as the contract with Hall, as he now contends it should be interpreted. If, therefore, the circumstances surrounding the making of the contract were such that neither party to it could have construed it as the appellant now claims it should have been construed, we must reject that construction and seek one fairly justified by the language of the contract, more consistent with the circumstances of the case. Under the light of these circumstances it is clear that the contract bound the appellant to deliver, in addition to the specific quantity named, such other quantity, more or less, of oats as might be needed from time to time for the wants of the station, and as he might be required to deliver. That such was the appellant's understanding of the contract is evident from the further fact found by the court of claims, that the appellant never asked to be informed whether or not any other oats above the quantity specifically mentioned in his contract would be required; and when he offered the nine car-loads of oats to the receiving officer he requested him to take them in order to clear up all he had at Bismarck and get the railroad company's cars unloaded, but never claimed that he had the right to deliver the oats under his contract. It is, therefore, plain that the interpretation he now puts on his contract is an after-thought, and is not the interpretation put upon it by the parties when it was executed. The construction we have put upon the contract does no violence to its language. The provision that the oats required for the wants of the station, over and above the quantity specifically mentioned in the contract, were to be delivered in such quantities and at such times as the receiving officer might require, may well be construed to leave with that officer a discretion to call for the additional oats or not, as in his judgment they were or were not necessary for the wants of the station; and if he required none the appellant was bound to deliver and the United States to receive none. We are of opinion that the court of claims was right in dismissing the petition of the appellant. Its judgment must, therefore, be affirmed.

108.US.314

When an act of the legislature authorized a county to subscribe for stock in a railroad or its branches, and the inhabitants of the county at legally convened meetings voted to exercise the power thus conferred, and the subscription was made, and county bonds issued therefor and exchanged for stock in a branch of the railroad for which the subscription was made, and the county, for a series of years, paid the interest on the bonds, and then resisted payment solely on the ground that the road constructed was not the road to whose stock the statute authorized the county to subscribe : Teld, On the special finding found at the trial below, that the road is one of the branches for which the act authorized counties to subscribe.

The Tebo & Neosho Railroad Company was authorized by its charter to construct and operate a railroad from some point on the Pacific Railroad, between the west bank of the Laramie river and Muddy creek, in Pettis county, in a southerly or southwesterly direction through Henry county, to some point on the state line between the north-west corner of Jasper and the south-east corner of McDonald county. It was also expressly authorized 'to extend branch railroads into and through any counties that the directors may deem advisable.' For the purpose of aiding in the construction by that company of a road from the junction of the main line with the Pacific Railroad, extending in a north-easterly direction, to Boonville, through the county of Howard, the county court of that county, in its behalf and after a favorable vote by the people, made a subscription to the capital stock of the company, and issued county bonds therefor. One-half of the bonds were sold by the county and the proceeds paid to the company, while the remainder were delivered in full payment of the balance due on the subscription. The subscription was made and bonds issued in pursuance of a provision in the company's charter which made it 'lawful for the county court of any county in which any part of the railroad or branches may be, or any county adjacent thereto, to subscribe to the stock of said company, * * * and for the stock subscribed in behalf of the county may issue the bonds of the county to raise the funds to pay the same, and to take proper steps to protect the interest and credit of the county court; may appoint an agent to represent the county, vote for it, and receive its dividends.' Act Jan. 16, 1860, §§ 6, 8; Act Nov. 21, 1857, Charter of Osage Valley & Southern Kansas R. Co., Laws of Mo. 1857, adjourned session, 62. The railroad was constructed through Howard county as proposed, and has been in operation ever since. The county court levied and sollected a tax to pay the interest on the bonds for seven years, regularly paid the semi-annual interest until March, 1878, redeemed a number of the bonds, voted the county's stock at several meetings of stockholders, and when, in 1874, the road so constructed north-easterly through Howard county was sold to the Missouri, Kansas & Texas Railroad Company, the county received 4,000 shares of the stock of the latter company in exchange for its stock in the Tebo & Neosho Railroad Company. Counsel for the defendant in error states that the county sold its stock in the Missouri, Kansas & Texas Railroad Company for $140,000. But no such fact appears in the findings. But it does appear that the county, when the case was tried below, still held that stock. And now it is contended in behalf of the county—and no other question is presented for determination—that there was no legal authority for this subscription or issue of bonds. The argument in its behalf is that the main road of the company was established on a line south of the Pacific Railroad; that Howard county could not, by subscription, aid in the construction of the main line; and could not, by subscription, aid in the construction of a road from the junction of the main line north-easterly through that county, because such a road would not be a branch road, but only an unauthorized extension of the main line. We are of opinion that the road constructed through Howard county was, within the meaning of the statute, a branch of the original or main line. The defense cannot be sustained. The judgment is affirmed.

107.US.192

1. Letters-patent granted to Edwin L. Brady, Dec. 17, 1867, for an improved dredge-boat for excavating rivers, are invalid for want of novelty and invention. 2. The design of the patent laws is to reward those who make some substantial discovery or invention, which adds to our knowledge and makes a step in advance in the useful arts. It was never their object to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. 3. Although letters-patent are not set up by way of defence in an answer, yet if the invention patented thereby is afterwards put into actual use, their date will be evidence of that of the invention on a question of priority between different parties. 4. One person receiving from another a full and accurate description of a useful improvement cannot appropriate it to himself; and letters-patent obtained by him therefor are void.

This case arises upon a bill in equity filed by Edwin L. Brady against the Atlantic Works, a corporation of Massachusetts, having workshops and a place of business in Boston, praying for an account of profits for building a dredge-boat in violation of certain letters patent granted to the complainant, bearing date December 17, 1867, and for an injunction to restrain the defendants from making, using, or selling any dredge-boat in violation of said letters patent. The bill was filed on the ninth of April, 1868, and had annexed thereto a copy of the patent alleged to be infringed. The following are the material parts of the specification: 'The excavator consists of a strong boat, propelled by one or two propellers placed in the stern of the boat. I prefer two propellers, as affording greater power and rendering the boat more manageable in steering in crooked channels. This propeller is driven in the ordinary manner by steam-engines of ordinary construction. Near the bow of the boat I place another steam-engine, driving what I call the 'mud-fan,' which projects from and in front of the bow of the boat. This is formed by a set of revolving blades shown at A, turned, like the propellers, by a shaft passing through a stuffing-box, D. The blades are shaped somewhat like those of a propeller, but they are sharper on their fronts and less inclined on their faces. These blades should extend, say, two feet below the bottom of the boat, and their object is by their rapid revolution to displace the sane and mud on the bottom, and, stirring them up, to mix them with the water so that they may be carried off by the current. 'The motion of the 'mud-fan' tends to draw forward the boat, assisting the propellers. 'All the engines may be driven by one set of boilers, F, placed amid-ships. In order that the 'mud-fan' may be brought in contact with the bottom, I construct the boat with a series of water-tight compartments, E, placed in the bow and stern, and on each side of the center, amid-ships, into which the water may be permitted to flow through pipes so as to sink the vessel to the required depth; the compartments being so placed and proportioned that the vessel shall sink with an even keel, by which the effective action of the 'mudfan,' the propellers, and the steering apparatus is preserved, the boat being manageable at any depth. A large pump, B, driven by the engine, is connected by pipes with all the compartments, so that the water may be pumped out when necessary to raise the boat. 'I am aware that boats have been constructed with compartments to be filled with water, to sink the dredging mechanism to the bottom, by loading the end of the boat in which such mechanism is placed; but this construction is subject to the disadvantage of requiring more complicated machinery for dredging, in order that it may be accommodated to the inclination of the boat, and to the further disadvantage that the boats thus inclined are comparatively unmanageable. 'What I claim as my invention, and desire to secure my letters patent, is: (1) A dredging-boat, constructed with a series of water-tight compartments, so proportioned and arranged that, as they are filled with water, the boat shall preserve an even keel, and the dredging mechanism be brought into action without any adjusting devices, substantially as set forth. (2) The combination of the 'mud-fan' attached to a rigid shaft, and a boat containing a series of water-tight compartments, E, so adjusted as to cause the boat to settle on an even keel as the compartments are filled with water, and a pump, B, for exhausting the water from all the compartments, substantially as set forth.' The defendants, in their answer, denied the validity of the patent, and denied infringement of any valid patent of the complainant. They then stated the circumstances under which they came to construct the dredge-boat complained of, namely: That in October, 1867, the government of the United States advertised for proposals for building a dredge-boat for the mouth of the Mississippi river, according to certain plans and specifications; that the defendants, being manufacturers and builders of marine engines and steam-boats, examined the plans and specifications, and made proposals for building the boat according to the same, which were accepted, and they at once began the construction of the boat and completed it under the inspection and supervision of a United States officer, in conformity with the stipulations, and the boat went in charge of said officer to the mouth of the Mississippi river; that the said plans and specifications were made and furnished by Gen. McAlester, of the engineer corps of the United States, for the use of the government, and were the result of his own study, observations, and experience, and that, so far as they were original, he was the author of them. They further alleged by their answer (as amended) as follows: 'That the plans and specifications by which the said dredge-boat was constructed were not, and the said dredge-boat itself was not, a new invention or novel and original; but the same, and the principle of said dredge-boat, had been substantially known and publicly used before, to-wit, at New Orleans, on the mouth of the Mississippi river, in the year 1859, in the steam dredge-boat Enoch Train, by Charles H. Hyde, by Thomas G. Mackie, and William A. Hyde, copartners, under the firm of Hyde & Mackie, and by Henry Wright, and had also been used and applied in the construction of light-draught monitors, so called, built by the United States government during the late rebellion, and long prior to the alleged patent or invention of the said Brady, and the dates of his patent or caveat, and one of which said light-draught monitors was built at the works of these defendants.' The answer further stated that in 1866 and 1867, prior to the date of Brady's alleged invention, he was acting as agent for one Tyler, in carrying out a contract with the government for the improvement of the mouth of the Mississippi river; that Gen. McAlester was then stationed at New Orleans to supervise and inspect, on behalf of the United States, the execution of the contract; that Brady was fitting and preparing a steam-boat for the purpose on a plan entirely different from that of his alleged invention; that McAlester then detailed and described to him a plan for a dredge-boat identical with that of the boat constructed by the defendants, which plan McAlester communicated to the board of engineers of the army before the date of the alleged invention by Brady; that Brady's boat was a failure, and the contract was annulled; that then Brady made drawings for a boat on the plan described to him by McAlester, and afterwards claimed to be the inventor of it, and made application for his patent, and obtained the same after the defendants had commenced work on the boat complained of. Evidence was taken, and on a hearing before Mr. Justice CLIFFORD, in September, 1876, a decree was made sustaining the patent, declaring that the defendants had infringed the same, and referring it to a master to take an account of the profits received by the defendants from the infringement. The master reported the sum of $6,604.82. Both parties excepted, but their exceptions were overruled, and a final decree, in accordance with the report, was rendered October 9, 1878, with costs. Both parties have appealed. The most important question, and first to be considered, is the validity of the patent. It is obvious, from reading the specification, that the alleged invention consists mainly in attaching a screw (which the patentee calls a mud-fan) to the forward end of a propeller dredge-boat, provided with tanks for settling her in the water. It is operated by sinking the boat until the screw comes in contact with the mud or sand, which, by the revolution of the screw, is thrown up and mingled with the current. The use of a series of tanks for the purpose of keeping the vessel level while she settles is an old contrivance long used in dry-docks, and is shown by the evidence to have been used in many light-draught monitors during the late war. The defendants themselves built one of these vessels—the Casco. Mr. Edwards, the president of the Atlantic Works, in his testimony says: 'The Casco was built double, leaving a water-space on each side nearly the entire length of the vessel, with an arrangement of valves for flooding the compartments at pleasure, for the purpose of sinking the vessel to the desired draught of water, and with powerful steam-pumps to pump the water out for the purpose of raising it in the water. The compartment on the side was divided into several, and one or all of them could be filed as desired. The object was to enable them to put her on an even keel, or to raise or depress one end at pleasure.' The employment of their screws by propeller ships, driven stern foremost, for the removal of sand and mud accumulated at the mouths of the Mississippi, had frequently occurred years before the patentee's invention is alleged to have been made. Several French steamers, one of which was named the Francis Arago, had used this method there prior to the year 1859. In that year the Enoch Train, a double propeller,—that is, having two screws at her stern,—was used in the same way by certain contractors under the government for dredging the mouth of the Mississippi. Mr. Hyde, one of the contractors and owners, in his testimony describes her construction and operation as follows: 'She was a propeller of burden between three and four hundred tons, with two propeller screws at her stern, about nine feet in diameter each; the cylinders were 36 inches in diameter, and 34 inches stroke; she had one doctor engine; was fitted also with a large wrecking-pump, with two low-pressure boilers; engines were also low-pressure engines. Her draught of water, in ordinary trim, with 300 barrels of coal on board, was about 13 feet aft, and a little less at the bows. By ordinary trim I mean the usual sailing trim. The propeller screws were one on each quarter, or each side of the stern-post. Before going to dredging on the bar, I fitted her up with a water-tight apartment or tank, at the stern, by a bulk-head running athwart-ships, say about 20 or 25 feet from the stern. That space was divided by a fore-and-aft bulk-head, making two water-tight compartments. 'The mode of filling the compartments was by stop-cocks in the sides of the vessel opening into the water-tight compartment; the draught of water could be increased from her natural draught of water, say to feet to 18 feet, according to the quantity of water let into the tanks. The more of operating was by running the vessel up and down over the bar, and thus stirring up the mud with the propeller screws. When the water was too shoal for her to pass over, the stern of the vessel was turned to the bar, and she was run stern on, the engines being reversed. Whenever we got done working on the bar there was a valve in the water-tight compartments for letting the water into the hold of the vessel, from which the water was pumped out of the vessel by the steam-pumps, and the vessel would then be left at her ordinary draught. 'Interrogatory 13. Please to state how you happened to employ this mode of dredging by the Enoch Train. 'Answer. Well, I thought it would be an effectual way of removing the mud from the bar; that by the screws coming in contact with the mud and deposit, and the revolutions of the screws about 60 times a minute, would create a current of water by which the sediment would be washed way.' The evidence of Henry Wright, the master of the Enoch Train, under whose charge her operations were conducted, is to the same purport. He says: 'We used to work our propellers in cutting up the mud. The operation consisted in cutting through the mud with our propellers. Sometimes we went at the mud stern foremost, sometimes sideways, and sometimes bows on. When I went to the bar at first there was about 15 feet of water on it, and when I quit operating there were 18 feet on it in most places. Where the water was shallow we invariably went at the mud stern foremost. The stern was always loaded down to 18 feet when dredging, but the bows were not loaded down. In dredging, the stern was always several feet lower down than the bows, say three or four feet.' The boat built by the defendants, which was called the Essayon, was operated in precisely the same way. Being built expressly for dredging, her dredging screw was placed at her stem, it is true; but her mode of operation was the same as that of the Enoch Train. Her master, Putnam, describes it is follows: 'The method we use is to go outside the bar into deep water; then we sink the dredging end of the vessel by filling up the tanks at that end with water to any depth required; then we start the propelling screw at the other end of the vessel, and go in with that until the vessel grounds; then we stop the propelling screw and start the dredging screw, and as that screw revolves it cuts up the mud at the bottom and drags the vessel after it at the same time. After going as far as we wish, we stop the dredging screw, lower the rake at the dredging end, and back out into deep water, using either or both of the screws to go back with, thus dragging the mud after us that the dredging screw has cut up from the bottom, and earrying at out into deep water; or, rather, the operation is that the dredging screw agitates the mud and throws it up into the surface current, and the current takes it out to a large extent, while the rake takes fresh hold of the bottom and also carries out whatever is broken up by the screw and settles from the current. After backing out into deep water, we hoist the rake and go back again and repeat the operation. When we first arrived at the bar we made several experiments as to the best mode of dredging, but the mode above described we found to be the correct one, and have ever since used.' Nearly all the witnesses examined on the subject declare that there is no difference in principle between the mode of operation of the Enoch Train and that of the Essayon. The scraping or raking apparatus is not mentioned in the plaintiff's patent at all. This, as will be hereafter seen, is part of the original design of Gen. McAlester, the government officer who had charge of the improvement of the mouth of the Mississippi. It is further noticeable that the Essayon, as is abundantly established by the evidence, always worked with her stern sunk and depressed, and never with an even keel, upon which special emphasis is placed by the patent in suit. It may well be asked, at this point, where was there any invention in the device described in the patent? Was it invention to place a screw for dredging at the stem of the boat? Nothing more than this was in reality suggested by the patentee. And that was substantially what was done with the French steamers prior to 1859, and with the Enoch Train in that year. They were curned end for end, and the stern was used as the stem, and the screws went forward, working in the bottom deposit in advance of the vessels. When the Enoch Train was procured for the service which she performed, she was ready-made, and the contractors, to save time and expense, simply supplied her with a tank, in order to settle her to the proper depth, and they found her very serviceable. Had she been built for a dredge-boat, with the design of using screws for dredging, (as she did use them,) can it be doubted that her dredging screw would have been placed forward instead of turning her stern forward? Would not this have been suggested by ordinary mechanical skill? The plan and mode of operation would have been precisely the same. When, after this, the government proceeded to build a boat expressly for dredging the mouths of the Mississippi, we should naturally expect to find it built as the Essayon was built, with her dredging screws at the stem instead of the stern. The making of them with longer blades than those of the propelling screw, and sharpened at the points, would be a matter of course. No invention would be requisite for any of these arrangements. It seems to us that the whole principle of the Essayon's construction and furnishment, as well as that of the patent in question, was anticipated by the Enoch Train, if not by the French steamers, and that a patent for that principle, though qualified by the natural incidents and adjuncts of its application, ought not to be sustained. The process of development in manufactures creates a constant demand for new appliances, which the skill of ordinary head-workmen and engineers is generally adequate to devise, and which, indeed, are the natural and proper outgrowth of such development. Each step forward prepares the way for the next, and each is usually taken by spontaneous trials and attempts in a hundred different places. To grant a single party a monopoly of every slight advance made, except where the exercise of invention somewhat above ordinary mechanical or engineering skill is distinctly shown, is unjust in principle and injurious in its consequences. The design of the patent laws is to reward those who make some substantial discovery or invention, which adds to our knowledge and makes a step in advance in the useful arts. Such inventors are worthy of all favor. It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the art. It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities to lawsuits and vexatious accountings for profits made in good faith. But the Enoch Train did not exhibit all that was done in the matter of dredge-boats anterior to the alleged invention of Brady. If the application of dredging screws to the stem of a boat, driven by a propeller or otherwise, was not formerly exhibited in the Enoch Train, it was certainly exhibited in the invention of one Ephraim B. Bishop, which was patented in April, 1858, and was applied by Brady himself to a dredge-boat called the Wiggins Ferry, fitted up and operated by him at the mouth of the Mississippi in 1866. This boat was propelled by an ordinary center paddle-wheel, and to the bow was fixed two revolving conical-shaped screws, which, on being let down to the river bottom, cut and stirred up the mud and sand, and caused it to float away in the current. Each screw was driven by a separate steam-engine. Bishop was examined as a witness, and testified that the idea occurred to him from seeing a stern-wheel boat on the Arkansas river make a channel for herself by turning stern foremost and removing the sediment by the revolution of her propeller. He says: 'About 1852 or 1853, I was then keeping store at Van Buren, Arkansas. The difficulty of getting goods up the Arkansas river, in consequence of sandbars, was very great—so great that we had a cargo of goods, nearly a whole boat-load, that was detained in consequence of sand-bars for at least eight months before she could reach Van Buren from Pine Bluffs, Arkansas. Seeing this necessity of removing these obstructions, and knowing all about the usual machines up to that date that had been invented, and their capacity, and knowing of the very great amount of sediment that must be removed to do any good, it appeared to me absolutely necessary that machinery of greater capacity and strength should be invented, and, thinking upon this subject, I thought of and planned out one or more spirally-flanched screws, to be rotated by machinery on deck of a boat or in her hull, with the large ends of the spiral screws down, with sharp-cutting corners or points, the screws to revolve right and left powerfully, intended to elevate the sediment up the inclination of the drum by reason of the powerful motion of those drums. The water, being comparatively still, would necessarily force the sediment up the inclination of the screws, and throw the sediment off to the right and left into the water, which would carry it to harmless localities. This was the first plan that was afterwards developed into my patent.' In the fall of 1866 Brady and several other persons associated with him, Bishop himself being interested, made a contract with the government to dredge the South-west pass of the Mississippi, and procured for the purpose the Wiggins Ferry, and fitted up her bow with Bishop's apparatus. Brady had the superintendence of her fitting up, and of operating her after she was ready for work. They commenced upon her in November, 1866, but did not get her started until the nineteenth of March, 1867. After working with her for several months, and finding that she was not strong enough for the work required in the South-west pass, and that the sediment would fill up again when she was taken off for repairs, (although they often succeeded in deepending the channel three or four feet,) the contract was abandoned. For a common river bottom she would have answered well enough. Mr. Roy, one of the parties interested in her, and who was on her for several days at the commencement of her operations, says that in the pass, before trying the bar, she worked very successfully. If her machinery was not strong enough for accomplishing the hard work to be done on the bar, she was nevertheless well fitted for lighter dredging, and exemplified in her construction the use of screws at her stem. It is true that Bishop's patent was not set up by way of defense in the answer; but there is no dispute as to the time it was issued, and that fact, together with Bishop's testimony, makes it clear that his invention, which was exemplified in the Wiggins Ferry, was made as far back as 1858, anticipating Brady, according to his own showing, for at least seven or eight years. It is clear, then, that Brady did not invent the furnishing of vessels with water-tanks, so arranged as to sink them on an even keel; for these had been used long before in the light-draught monitors; he did not invent the use of revolving screws on a dredging-boat, for cutting and stirring up the mud and sediment; for these had been used for that purpose on the French steamers, and on the Enoch Train, in and prior to 1859; he did not invent the use of water-tanks in a dredging-boat for sinking the screws down to the bottom or bar to be dredged; for this plan had been adopted in the Enoch Train; he did not invent the application of screws to the forward end of a dredge-boat, so as to work in advance of the boat; for this had been virtually done on the Enoch Train, and was formerly done on the Wiggins Ferry, the plan of which had been invented by Bishop in 1858. What, then, did he invent? Did he make a selection and combination of these elements that would not have occurred to any ordinary skilled engineer called upon, with all this previous knowledge and experience before him, to devise the construction of a strong dredge-boat for use at the mouth of the Mississippi? We think not. We think that there is no reasonable ground for any such pretension. But if a different conclusion could be reached, to our minds it is as certain as any fact depending on conflicting testimony can be, that Brady derived the ideas embraced in his patent from Gen. McAlester, the government officer, who in 1866 and 1867 had charge of the improvements at the mouth of the Mississippi river, and that he never conceived these ideas till they were communicated and explained to him by Gen. McAlester during the fitting up of the Wiggins Ferry at New Orleans, and during the progress of her operations at the South-west pass. It is proved by overwhelming evidence that during the whole period of her fitting up, and until it was developed by her working on the bar that she was incapable of performing the work required of her at that place, that Brady regarded and spoke of Bishop's plan as the best possible plan that could be devised, and that, although deeply interested in the success of the operations, he never alluded to or hinted at any plan of his own devising different from it. His whole conduct for months, as well as his total silence on the subject of any prior invention made by himself, in all his intercourse with his associates in the contract, with the government officers in charge, and with the superintendents and owners of the foundry where the Wiggins Ferry was fitted up, is the strongest possible proof that no such invention as he claims had been projected by him. The witnesses who speak of his conversations and sketches in December, 1865, and early in 1866, as communicated to them with the utmost freedom, with no apparent object so far as they were concerned, must either be mistaken as to the time, or as to the devices described. Interested as he is in the result of the suit, his own testimony cannot be allowed to prevail against a course of conduct so utterly at variance with it. It may be true; but we cannot give it effect against what he himself did, and did not do, without disregarding the ordinary laws that govern human conduct. During the operation of the Wiggins Ferry on the bar, it is true, he did make divers plans and drawings for an improved dredge-boat. The first, made, as Lieut. Payne says, a week or 10 days after the vessel arrived at the South-west pass, (therefore the last of March or first of April,) was merely a modification of Bishop's plan, placing the cones parallel to each other instead of being pointed together in a salient angle, and providing the boat with water-tight compartments by which she could be raised or lowered. He worked at these drawings for some time, and Lieut. Payne helped him to make tracings of them. In one corner of the drawings on the same sheet two or three screws were exhibited, intended to be used in place of the cones, if thought best or desired. It is stated in the bill that on the seventeenth of May, 1867, Brady filled a caveat in the patent-office describing his invention; but the patent was not obtained till the seventeenth of December following. No copy of the caveat appears in the record, so that we cannot tell what it contained. Now, where was it that Brady, who had been so enthus astic upon the superlative merits of Bishop's plan as applied to the Wiggins Ferry, obtained the new light which resulted in the filing of his caveat the seventeenth of May, and in the obtaining of his patent in December? The story is told by Lieut. Payne, who appears to he, not only an intelligent, but an entirely disinterested witness. He says: 'In the latter part of February 1867, at the engineer office. New Orleans, Gen. McAlester told Brady that he had doubts of the sucessful working of the Wiggins, and in the case of her proving a failure, he should suggest to the engineer department a plan of his own for doing that work, which plan he then explained to Brady in my presence. He said he should recommend the building of a strong vessel provided with propellers at each end and arranged with water-tight compartments, so that the vessel could be raised or lowered at pleasure. She was also to be provided with scrapers, which could be attached at either end, and raised or lowered at will by machinery. She was to have rudders at each end, and be able to move in either direction, either head or stern, equally well. He proposed to try the scrapers first, and, if they were not found to work satisfactorily, to try any other device which might be thought practicable. Brady seemed to be much pleased with the idea, but seemed confident of the success of the Wiggins.' It further appears that Gen. McAlester, in pursuance of his idea, communicated his plans to the government board of engineers, and during the spring and summer of 1867, commencing as early as April, prepared the plans and specifications according to which the Essayon was afterwards built. It is very strange that the copy of Gen. McAlester's letters to the department, and several other important exhibits that were put in evidence, have not been inserted in the record used on this appeal. Where the fault lies, it is not for us to say. Sufficient appears, however, notwithstanding the evidence adduced to the contrary, consisting mostly of the testimony of the complainant himself, to convince us that Brady derived his those idea from the suggestions of Gen. McAlester; and that the plans for the construction of the Essayon originated entirely with that officer. Our conclusion is that the patent sued on cannot be sustained, and that the decree of the circuit court must be reversed, and the cause remanded, with instructions to dismiss the bill of complaint. Decree reversed accordingly.

107.US.336

1. Under the act of Aug. 14, 1848, c. 177, entitled "An Act to establish the territorial government of Oregon," a religious society acquired no title to publie lands by reason of its occupation of them as a missionary station among the Indian tribes, unless such occupation actually existed at that date. 2. Where, therefore, a religious society appropriated certain lands in the Territory of Oregon, erected improvements thereon and occupied them for such a missionary station, but its occupation ceased before that date, and a portion of them, after the town-site dcts took effect, was, pursuant to their provisions, entered and paid for, and another portion was claimed by a party who had fully complied with the requirements of the act of Sept. 27, 1850, c. 76, commonly called the Donation Act,-Held, that the society to which by reason of such occupation a patent bad been issued held the title to such portions in trust for the parties claiming respectively under the donation and the town-site acts. 3. Prior to the said act of Sept. 27, 1850, no person could, by entry or preemption settlement, acquire as against the United States any right or title to public land in Oregon. Stark v. Starrs, 6 Wall. 402, cited upon this point and approved.

lear, and does not seem to be disputed, that the title of the appellee to the fractional quarter of land described in the bill is a good and valid title against all the world, unless it be the appellant, the Missionary Society of the Methodist Episcopal Church. The title of appellee was acquired by virtue of an entry made at the proper land-office, in pursuance of the provisions of two acts of congress,—one passed May 23, 1844, (5 St. 657,) and the other July 17, 1854, (10 St. 305.) The controversy in the case arises upon the claim of the appellant, which contends that its title is better and superior to that of the appellee. The patent from the United States to the Missionary Society of the Methodist Episcopal Church for the lands in controversy was issued by virtue of section 2447 of the Revised Statutes, and, as directed by that section, deciared as follows: 'That this patent shall only operate as a relinquishment of title on the part of the United States, and shall in no manner interfere with any valid adverse right to the same land, nor be construed to preclude a legal investigation and decision by the proper judicial tribunal between adverse claimants to the same land.' It is, therefore, clear that the patent does not conclude this controversy, and that if the United States had, at the date of the patent, no title to the lands described therein, the patent conveyed none to the defendant. But both parties contend that they had acquired the title of the United States long before the date of the patent. As the appellee is conceded to have prima facie a good title, the appellant is driven to show a better title, independently of the patent. This it has undertaken to do. The only question in the case, therefore, is, has it succeeded in establishing a title to the premises superior to that under which the appellee claims, and by virtue of which it is in possession? The appellant asserts title under the provisions of the first section of an act of congress passed August 14, 1848, entitled 'An act to establish the territorial government of Oregon,' (9 St. 323.) This section, among other things, declared 'that the title to the land, not exceeding 640 acres, now occupied as missionary stations among the Indian tribes in said territory, together with the improvements thereon, be confirmed and established in the several religious societies to which said missionary stations respectively belong.' The appellant contends that on August 14, 1848, it was, within the meaning of the statute, occupying as a missionary station among the Indian tribes of Oregon the lands now in dispute. Whether this contention is well founded is the turning point of the controversy. It appears from the testimony in the record that in the year 1836 or 1837 a missionary station was established by the Missionary Society of the Methodist Episcopal Church, under the superintendence of the Rev. Jason Lee, on the lands now in controversy, situate on the Columbia river, east of the Cascade mountains, at a place then called Wascopum, but since then known as the Dalles. In 1844 Lee was succeeded by the Rev. George Gary, who continued to be the superintendent of the station until July, 1847, when he was succeeded by Rev. William Roberts. At this time there were at the station a two-story dwelling-house, a school-house, which was used also as a church, a store-house, with cellar underneath, a barn, some farming lands inclosed, and farming utensils. In August, 1847, Mr. Roberts, being still the superintendent of the station, transferred it to Dr. M. Whitman, who was a missionary of the Presbyterian Missionary Society, known as the American Board of Commissioners for Foreign Missions. An account of this transfer is given in the testimony of Mr. Roberts, as follows: 'In August, 1847, I transferred the said station into the hands of Dr. M. Whitman, at the assent of the A. B. C. F. M. The mission station was placed in his hands on the conditions and with the understanding that it should be occupied by them for the use and benefit of the Indians residing in that place and vicinity. For the movable property they were to pay such an amount as might mutually be agreed upon. For the station itself they were to give no compensation, the understanding being all the while that the mission was to be maintained by them for the use and benefit of the Indians, in a religious point of view, which included the education of the children, the instruction of the Indian parents in all matters pertaining to their religious interests and temporal well-being. The reasons for the transfer without compensation were briefly these: The Methodist mission had but one station east of the Cascades, and more work in the Willamette than they could well attend to. The American Board had three stations in the upper country, and it was quite desirable for them to have the Dalles also, as it was the key to that entire region, and as an act of Christian regard and confidence the transfer was thus made.' 'The amount which Dr. Whitman was to pay for the movable property was subsequently fixed at a fraction over $600. This included a large canoe farming utensils, fanning-mill, some wheat,' etc. Payment of the $600 was made by a draft drawn by Dr. Whitman, dated in September, 1847, upon American Board. Mr. Roberts, the Rev. Alvin F. Waller, and Mr. Brewer—the latter two, up to the date of the transfer, having been in the occupancy of the mission left the station immediately after the transfer and went down the Columbia river. They carried off their movable property which had not been sold to Dr. Whitman. Dr. Whitman, to whom the station had been transferred, remained there a few days and then returned to his home at Wailatpu, distant about 140 miles. He left his nephew, Perrin B. Whitman, a youth 17 years of age, at the Dalles, in possession of the buildings which had been occupied by the Methodist missionaries. On November 29, 1847, Dr. Whitman was, with his family and a number of other persons, murdered by the Cayuse Indians at his home at Wailatpu. When news of this massacre reached Perrin B. Whitman, he abandoned the Dalles and went down the Columbia river, leaving no one in the occupancy of the station. After the transfer of the station by Roberts to Whitman in August, 1847, the record does not show that any missionary labors were ever performed at the Dalles, either by the Methodist society or the American Board, except two or three religious services held by Mr. Waller, in June, 1850, when he went to the Dalles to show Mr. Roberts the boundaries of the mission claim. After the month of August, 1847, no person representing the Methodist Missionary Society, and after December, 1847, no person representing the American Board, ever occupied the missionary station at the Dalles. The reason assigned by the appellant why the American Board abandoned the station and why possession of it was not resumed by the Methodist Society was the fear of Indian hostilities. It follows that on August 14, 1848, when the act to organize the territory of Oregon was passed, the station was not in the occupancy of any one representing either of the missionary societies. About the last of February or the first of March, 1849, Messrs. Walker, Spaulding, and Eels, three missionaries of the American Board, delivered a writing to Mr. Roberts in which they 'offered for his acceptance the mission station at Wascopum, near the Grand Dalles of the Columbia river,' and proposed 'that it be retransferred to the Oregon Mission of the Methodist Episcopal Church in the same manner in which it was received by the Oregon Mission of the American Board of Commissioners for Foreign Missions.' The draft given to Mr. Roberts for the movable property at the Dalles, sold by him to Dr. Whitman in August, 1847, was delivered up, it having never been paid. The appellant did not resume missionary work at the Dalles after this attempt to retransfer, nor did it take possession of the premises. In June, 1850, Mr. Roberts returned to the Dalles for the purpose of making a survery of the 640 acres which he proposed to claim for the Missionary Society of the Methodist Episcopal Church under the act of 1848. He made a survey and had it recorded. On February 28, 1859, several years after the lands in controversy had been entered and paid for by Dalles City, the American Board delivered to the Missionary Society of the Methodist Episcopal Church a release of all their right and title to 'the property in the vicinity of the Dalles on the Columbia river, known as the 'mission property." The question is presented whether, upon these facts, the appellant, the Missionary Society of the Methodist Episcopal Church, has shown a better title to the lands in controversy than that of Dalles City, the appellee. The title claimed by appellant is based entirely upon the first section of the act of August 14, 1848, before referred to. This was a public grant. In the case of Dubuque & P. R. Co. v. Litchfield, 23 How. 66, it was said by this court, speaking of a public grant of land: 'All grants of this description are strictly construed against the grantees. Nothing passes but what is conveyed in clear and explicit language.' See, also, Jackson v. Lamphire, 3 Pet. 289; Beaty v. Lessee of Knowler, 4 Pet. 165; Providence Bank v. Billings, Id. 514; Charles River Bridge v. Warren Bridge, 11 Pet. 420; Leavenworth, ect., R. Co. v. U. S. 92 U. S. 733. The act of August 14, 1848, confirms and establishes title to land occupied at the date of the act as missionary stations among the Indian tribes. The words are 'now occupied.' To occupy means to hold in possession; to hold or keep for use; as, to occupy an apartment. Webst. Dict. The appellant contends that this act confers title on it for lands which it did not occupy at the date of the act, but which it had voluntarily abandoned 11 months before, and the occupancy of which it never resumed, either for missionary or any other purposes. Not even a liberal construction would support such a claim. But the appellant, conceding that it was not in the actual occupancy of the premises, either as a missionary station or otherwise, at the date of the passage of the act, nevertheless insists that, being in actual occupancy in August, 1847, it transferred its rights therein to the American Board, on condition that the latter society should maintain a mission there for the benefit of the Indians, and that, as the American Board failed to maintain such a mission and abandoned the premises, the rights of the appellant reverted to it, and it, therefore, had a constructive possession when the act of August 14, 1848, was passed, which brought it within the meaning of the act. We do not think this contention can be sustained. In the first place, it cannot be fairly inferred from the testimony in the record that the transfer of the missionary station was a conditional one, and that it was any part of the contract that the rights of the appellant should revert to it if the condition were broken. It is plain that the transfer was absolute. Doubtless it was the expectation of the appellant that the transferee would conduct upon the premises a mission for the religious benefit of the Indians, and such, doubtless, was the purpose of the American Board. But it does not appear to have been any part of the contract that, if the American Board failed to carry on such a mission, the appellant should resume possession. But, conceding that such was the understanding between the parties, there is still a fatal obstacle to any claim on the part of the appellant. When the appellant was in the occupancy of the premises in controversy, and when it made the transfer of possession in August, in controversy, and when it made the transfer of possession in August, 1847, and until the passage of the act of August 14, 1848, 'to establish the territorial government of Oregon,' that part of the country was without an organized territorial government under the laws of the United States. The public domain which was included within the territory of Oregon by the act just mentioned had not then been surveyed, nor was it open to settlement, pre-emption, or entry. Stark v. Starrs, 6 Wall. 402. The title was in the United States, subject to the possessory Indian title to portions of the territory, and there was no law by which any person or company could acquire title from the government. All persons, therefore, who settled upon the public lands acquired no rights thereby as against the government. They were merely tenants by sufferance. The most they could claim was the right of actual occupancy as against other settlers. Such an occupant could yield his right of actual possession to another settler. but he could convey no other interest in the land. If he abandoned the land and another settler occupied it, the former lost all right to the possession. If he transferred the possession to another and the transferee abandoned the land, the first possessor could claim no right in the land unless he again took actual possession. In short, the settler had no right as against the government, and no rights under the laws of the United States as against any one else to the possession of the land in his actual occupancy, except and only so long as such occupancy continued. It is true that before the passage of the act of August 14, 1848, to organize a territorial government for Oregon, the people of that territory had, in June and July, 1845, met by their delegates in convention, and adopted laws and regulations for their government 'until such time,' as they declared, 'as the United States of America extend jurisdiction over us.' In this plan of government if was provided that any one wishing to establish a claim to land should designate the extent of his claim by line marks and have it recorded in the office of the territorial recorder. The appellant cannot derive any title from this regulation, for it never defined the extent of its claim by boundaries and never recorded the same, as required by the regulation, until long after the passage of the act of August 14, 1848, 'to organize a territorial government for Oregon.' That act in its fourteenth section declared as follows: 'All laws heretofore passed in said territory making grants of land, or otherwise affecting or incumbering the title to lands, shall be, and are hereby declared to be, null and void.' Referring to this act, this court declared in the case of Lownsdale v. Parrish, 21 How. 293, that congress passed no law in anywise affecting title to lands in Oregon till the passage of the act of September 27, 1850, and that prior to that date no one could acquire any title to or interest in the public lands in that territory. It follows that there could be no constructive possession of the public lands. When, therefore, in August, 1847, the appellant voluntary abandoned its possession of the lands in controversy to another missionary society it lost every shadow of claim thereto. Its right was a mere possessory right, without other title. It had no rights which it could reserve. When the American Board, in December, 1847, abandoned the lands in controversy the appellant had no rights therein. The reasons which induced the abandonment of the lands by the missionary societies whether a new policy on the part of the appellant, or fear of the Indians on the part of the American Board—are entirely immaterial. When the lands were abandoned for any reason all right in them was lost, and they were open to the occupancy of any one who might choose to take and hold them. The method adopted by the appellant to turn over the station to the American Board by an actual transfer of possession was as effectual as any could be. It could be done only by yielding the actual occupancy, and this could not be effected by a written transfer. It could be accomplished only by the going out of one party and the going in of the other. If the appellant had, in August, 1847, executed the most formal deed, conveying the lands to the American board, and had stipulated therein that on failure of the latter to maintain a mission thereon for the benefit of the Indians, or upon its abandonment of the lands, all the rights of appellant should revert to it, and it should be entitled to resume immediate possession, such a writing would have been inoperative and futile. The appellant had no rights in the land which it could convey, and no rights which it could reserve. These views are supported by the case of Stringfellow v. Cain, 99 U. S. 610, brought up from the territory of Utah. The act of March 2, 1867, 'for the relief of inhabitants of cities and towns upon the public lands,' (14 St. 541,) provided that whenever any portion of the public lands of the United States had been settled upon as a townsite, and were for that reason not subject to entry, it should be lawful for the authorities of the town to enter the lands as settled upon in trust for the several use and benefit of the occupants thereof, the execution of which trust was to be conducted under such rules as the legislature of the state or territory might prescribe. Under this act, it was held in the case cited that where a party had been in the occupancy of a lot, but prior to the passage of the act voluntarily withdrew therefrom and gave it up to others, her rights, which depended on keeping the possession, were gone. The appellant contends that the language of the first section of the act of August 14, 1848, under which it claims, implies that it had some title to the lands in question before the act was passed. It places stress on the words 'that the title to the lands be confirmed and established in the several religious societies to which said missionary stations respectively belong,' and says there must have been some previous title which could be confirmed and established. We have seen that it was not possible to acquire any title as against the United States before the passage of this act. If, therefore, the force is to be given to the words of the statute which the appellant claims for them, they must refer to the possessory title under the regulations above mentioned of the provisional government. But no steps, as we have seen, were taken by appellant to establish its claim under those regulations. It had simply settled upon the public domain as a tenant by sufferance, without authority of any law or regulation of any government, and had done no act by which it could acquire any claim of title. Whatever, therefore, may have been the case with other missionary societies, the appellant had no title of any kind which could be confirmed and established by the act of August 14, 1848. The American Board was in no better position. Neither of the societies acquired any title under the act of 1848. The writing executed in 1849 by Messrs. Walker, Spaulding, and Eels, and the release made by the American Board to the appellant in 1859, after Dalles City had entered and paid for the land, and the patent of the United States in 1875, which was a mere release, conveyed no rights to the appellant in the lands in controversy. The decree of the circuit court was, therefore, right, and must be affirmed.

109.US.121

1. A judgment of nonsuit is no bar to a ne* action, and of no weight as evidence at the trial of that action. 2. Pending an action in a court of the State of New York against a corporation established in that State, by a widow, a citizen of New Jersey, upon a policy of insurance on the life of her husband, the plaintiff assigned the policy to a citizen of New York in trust for her benefit, and was afterwards nonsuited by order of the court. Upon a subsequent petition by the trustee to another court of the State to be relieved of his trust, a citizen of New Jersey was at her request appointed trustee in his stead. One object of this appointment was to enable a stit on the policy to be brought in the Circuit Court of the United States, which was afterwards brought accordingly: Held, that the suit should not be dismissed under the act of 3d March, 1875, c. 137, § 1, 5. 8. A self-killing by an insane person, understanding the physical nature and consequeices of bs act, but not its moral aspect, is not a death by suicide, within the meaning of a condition in a policy of insurance upon his life, that'the policy shall be void in case he shall die by suicide, or by the hands of justice, or in consequence of a duel, or of the violation of any law.

This is an action brought on the ninth of June, 1879, in the circuit court of the United States for the southern district of New York, by John G. Broughton, a citizen of Bloomfield, in the state of New Jersey, against a corporation established in the city and state of New York, upon a policy of insurance in the sum of $10,000, on the life of Israel Ferguson, of New York, dated the fifteenth of June, 1864, made and payable to his wife, and containing a condition that it should be null and void 'in case he shall die by suicide, or by the hands of justice, or in consequence of a duel, or of the violation of any law of these states, or of the United States,' or of any other country which he might be permitted by this policy to visit or reside in. At the trial, the plaintiff offered evidence that Ferguson died in the city of New York on the fourteenth of August, 1876, and that presently afterwards his widow and family removed to Redbank, in the state of New Jersey, and had since had their home there. He also introduced a deed dated the tenth of February, 1877, by which Mrs. Ferguson assigned the policy to John G. Nestell, of New York, in trust, to pay a claim for $2,000, and the necessary expenses of collecting the amount of the policy, and to invest the surplus for her benefit; and a record of the supreme court of New York, showing that in May, 1879, in a suit brought by Nestell against Mrs. Ferguson to be relieved of his trust, Broughton, the plaintiff, was, upon her request, substituted as trustee in Nestell's stead. There was evidence tending to show that one object in having Broughton appointed was that a suit could be brought in his name in the United States court. The defendant, having pleaded in bar a former judgment in an action brought against it upon the policy by Mrs. Ferguson, in October, 1876, in the court of common pleas for the city and county of New York, offered evidence by which it appeared that in such an action the death of Ferguson by hanging himself was proved, and the only question in controversy was whether, and how far, he was insane at the time of his death; and that upon the defendant's motion the court, in December, 1878, granted a nonsuit, because he was not shown to have been so insane as not to know the physical consequences of his act, and the decision was entered of record in this form: 'Motion for nonsuit granted, and complaint dismissed; allowance, one hundred and fifty dollars to defendant, if further litigation be carried on by plaintiff.' The defendant requested the circuit court to direct a verdict for the defendant, because the former judgment was a bar, and afterwards objected to the introduction by the plaintiff of evidence of the condition of Ferguson's mind at the time of his death, because that question had been tried and determined in the former action. The court rightly denied the request, and overruled the objection. A judgment of nonsuit does not determine the rights of the parties, and is no bar to a new action. Homer v. Brown, 16 How. 354. A trial upon which nothing was determined cannot support a plea of res adjudicata, or have any weight as evidence at another trial. The defendant, at the close of the plaintiff's evidence in chief, and again at the close of all of the evidence in the case, moved to dismiss the action for want of jurisdiction, because Broughton had only a nominal interest, and the real controversy was between citizens of New York; and the at the argument in this court contended that the action should be dismissed because the evidence showed that the plaintiff was made trustee for the purpose of bringing an action in the United States court, after Mrs. Ferguson had failed to recover in the state court, under the rule established by the recent decisions of the court of appeals in Van Zandt v. Mutual Benefit L. Ins. Co. 55 N. Y. 169, and Weed v. Same, 70 N. Y. 561. But the case does not fall within the prohibition of the first section of the act of March 3, 1875, c. 137, that no circuit court shall have cognizance of any suit founded on contract, in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made; nor within the provision of the fifth section of the same act, authorizing the circuit court to dismiss a suit, upon being satisfied that it does not really and substantially involve a dispute or controversy properly within its jurisdiction, or that parties have been improperly or collusively made or joined for the purpose of creating a case cognizable by that court. 18 St. 470, 472; Williams v. Nottawa, 104 U. S. 209. Mrs. Ferguson, the assured and payee named in the policy, was herself a citizen of New Jersey, and as such, if no assignment had been made, might have sued the company in the circuit court of the United States; and Bromfield, a citizen of the same state, was appointed in the stead of the former trustee, a citizen of New York, not by Mrs. Ferguson's deed in pais, but by a court of competent jurisdiction. Under these circumstances the mere fact that one object in having him appointed was to enable a suit to be brought in the circuit court is not sufficient to require or justify the construction that he was improperly, and it cannot be pretended that he was collusively, made a plaintiff for the purpose of creating a case cognizable by that court. The question involved was not a question of local law, but of general jurisprudence, upon which Mrs. Ferguson, and Broughton, as her trustee, had a right to seek the independent judgment of a federal court. Railroad Co. v. Lockwood, 17 Wall. 357, 368; Mich. Cent. R. Co. v. Myrick, 107 U. S. 102; [S. C. 1 SUP. CT. REP. 425;] Burgess v. Seligman, 107 U. S. 20; [S. C. 2 SUP. CT. REP. 10.] Several minor points suggested at the argument hardly present any question of law. The interrogatories put by the counsel for the plaintiff to the expert called by the defendants were clearly admissible on cross-examination for the purpose of testing the knowledge and accuracy of the witness, and require no special consideration. The instruction requested, that 'the only legal test of insanity is delusion,' was in direct contradiction of the testimony of the experts called on each side, and could not properly be given as a rule of law. The court rightly refused to direct a verdict for the defendant, on the ground that there was no sufficient evidence to show that Ferguson was insane, or to render the defendant liable upon its contract. Without undertaking to recapitulate the evidence, it is sufficient to say that members of his family, and persons well acquainted with him in his business, testified that he was naturally of a lively, cheerful, sanguine disposition; that in 1874 he met with heavy losses in business, and his son died suddenly by falling from a window; that from that time forward there was a marked change in his demeanor; 'he was always walking with his head bowed down, and a gloomy expression, and the entire vitality and cheerfulness which the man had before was gone;' 'he was gloomy, dull, mopish;' 'he sat down in the office and moaned and would be gloomy there;' 'he always complained of his head; he would say, 'The trouble is here; it is all in my head, my head;" that shortly before his death he had 'a vacant expression in his face;' 'he had a queer expression about his eyes; it was a sort of wild, unnatural expression;' 'that kind of expression which the human face takes on when one is frightened; a far-off, glassy look, as though the mind was dwelling on nothing;' that 'he was very much changed, and was very excitable; he looked different, and had a wild expression; he staid a great deal by himself when he came home from business; he would go to his room and lie on his bed with his hat and overcoat on, and not come out to his meals.' The experts called for the plaintiff testified that Ferguson was suffering from that kind of unsoundness of mind which they termed melancholia. There was clearly some evidence of insanity for the jury, and the question of its weight was for them, and not for the court. Ins. Co. v. Rodel, 95 U. S. 232. The remaining, and the most important, question in the case is whether a self-killing by an insane person, having sufficient mental capacity to understand the deadly nature and consequences of his act, but not its moral aspect and character, is a death by suicide, within the meaning of the policy. This is the very question that was presented to this court in 1872 in the case of Life Ins. Co. v. Terry, 15 Wall. 580. At that time there was a remarkable conflict of opinion in the courts of England, in the courts of the several states, and in the circuit courts of the United States, as to the true interpretation of such a condition. All the authorities agreed that the words 'die by suicide' or 'die by his own hand' did not cover every possible case in which a man took his own life, and could not be held to include the case of self-destruction in a blind frenzy or under an overwhelming insane impulse. Some courts and judges held that they included every case in which a man, sane or insane, voluntarily took his own life. Others were of opinion that any insane self-destruction was not within the condition.1 In Terry's Case, (the trial of which in the circuit court before Mr. Justice MILLER and Judge DILLON is reported in 1 Dill. 403,) it was admitted that the person whose life was insured died by poison, self-administered; and the insurance company requested the court to instruct the jury—First, that if he destroyed his own life, and at the time of self-destruction had sufficient capacity to understand the nature of the act which he was about to commit, and the consequences which would result from it, the plaintiff could not recover on the policy; and, secondly, that if the self-destruction was intended by him, he having sufficient capacity at the time to understand the nature of the act which he was about to commit, and the consequences which would result from it, it was wholly immaterial that he was impelled thereto by insanity, which impaired his sense of moral responsibility, and rendered him to a certain extent irresponsible for his action. 15 Wall. 581. The circuit court declined to give either of the instructions requested, and instructed the jury in substantial accordance with the first of them only, saying: 'It devolves on the plaintiff to prove such insanity on the part of the decedent, existing at the time he took the poison, as will relieve the act of taking his own life from the effect which, by the general terms used in the policy, self-destruction was to have, namely, to avoid the policy. It is not every kind or degree of insanity which will so far excuse the party taking his own life as to make the company insuring liable. To do this, the act of self-destruction must have been the consequence of the insanity, and the mind of the decedent must have been so far deranged as to have made him incapable of using a rational judgment in regard to the act which he was committing. If he was impelled to the act by an insane impulse, which the reason that was left him did not enable him to resist, or if his reasoning powers were so far overthrown by his mental condition that he could not exercise his reasoning faculties on the act he was about to do, the company is liable. On the other hand, there is no presumption of law, prima facie or otherwise, that self-destruction arises from insanity; and if you believe from the evidence that the decedent, although excited, or angry, or distressed in mind, formed the determination to take his own life, because, in the exercise of his usual reasoning faculties, he preferred death to life, then the company is not liable, because he died by his own hand within the meaning of the policy.' 15 Wall. 582. The necessary effect of giving these instructions, after refusing to give the second instruction requested, was to rule that if the deceased intentionally took his own life, having sufficient mental capacity to understand the physical nature and consequences of his act, yet if he was impelled to the act by insanity, which impaired his sense of moral responsibility, the company was liable. That the ruling was so understood by this court is apparent by the opening sentences of its opinion on page 583, as well as by its conclusion, which, after a review of the conflicting authorities on the subject, was announced in these words: 'We hold the rule on the question before us to be this: If the assured, being in the possession of his ordinary reasoning faculties, from anger, pride, jealousy, or a desire to escape from the ills of life, intentionally takes his own life, the proviso attaches and there can be no recovery. If the death is caused by the voluntary act of the assured, he knowing and intending that his death shall be the result of his act, but when his reasoning faculties are so far impared that he is not able to understand the moral character, the general nature, consequences, and effect of the act he is about to commit, or when he is impelled thereto by an insane impulse, which he has not the power to resist, such death is not within the contemplation of the parties to the contract, and the insurer is liable.' Pages 590, 591. In Ins. Co. v. Rodel, 95 U. S. 232, the same rule was expressly reaffirmed. In that case the circuit court declined to instruct the jury that the plaintiff could not recover if the assured knew that the act which he committed would result in death, and deliberately did it for that purpose; and instead thereof, repeated to the jury the instructions of the circuit court in Terry's Case, and the conclusion of the opinion of this court in that case, as above quoted. This court, in affirming the judgment, said: 'This charge is in the very words of the charge sanctioned and approved by this court in the case of Life Ins. Co. v. Terry, 15 Wall. 580, Including an explanatory clause of the opinion of the court in that case. We see no reason to modify the views expressed by us on that occasion.' 95 U. S. 241. The policies in the cases of Terry and of Rodel used the words 'die by his own hand,' instead of which the policy before us has the words 'die by suicide.' But, for the purposes of this contract, as was observed in Terry's Case, 15 Wall. 591, the two expressions are equivalent. In the present case, the defendant requested the court to instruct the jury 'that if Israel Ferguson died by suicide the plaintiff cannot recover, unless he has proved to your satisfaction that such act of self-destruction was not Ferguson's voluntary and willful act; that he had not at the time sufficient power of mind and reason to understand the physical nature and consequences of such act, and did not have, at the time, a purpose and intention to cause his own death by the act;' 'that unless the evidence established that Israel Ferguson did not commit suicide consciously and voluntarily, the plaintiff cannot recover;' and 'that if he thus committed it, it is immaterial whether he was capable of understanding its moral aspects, or of distinguishing between right and wrong.' The court declined to give these instructions, and read to the jury the second instruction refused in Terry's Case, and the instructions given therein, as above quoted, and stated that the refusal of the former and the giving of the latter had been approved by this court, and that its decision contained a full exposition of the law, so far as it was necessary to be understood for the purposes of this case, and laid down the rule which would determine them in the application of the evidence which had been introduced; and further instructed them as follows: 'Upon the part of the defendant, all argument based upon the peculiar circumstances surrounding the suicide has been addressed to you, which is deserving of consideration; the various circumstances, showing premeditation. plan, thought, which , it is very fairly urged, afford quite strong evidence that at the time of his death he was in the full possession of his mental faculties. A serious question, gentlemen, which you will ask yourselves in this case, it seems to me, is this: Had he, in view of his misfortunes, and of the probable future that awaited him, deliberately come to the conclusion that it was better to die them to live, and did he in that view commit suicide; or was he so far mentally unsound that he could not exercise a rational judgment upon the question of life and death? Did he become oblivious to the duties which he owed to his family, to his friends, and to himself? Was he impelled by a morbid impulse which he had not sufficient strength of will to resist, and, acting under the influence of this insane impulse, did he determine to take his own life? Because, if his reasoning faculties were so far impaired that he could not fairly estimate the moral consequences, the moral complexion of the act, even though he could reason sufficiently well to prepare with great deliberation, and to execute his design with success, nevertheless, within the authority which I have read, he was so far insane that the plaintiff is entitled to recover on this policy.' These instructions are in exact accordance with the adjudications in the cases of Terry and Rodel; and upon consideration we are unanimously of opinion that the rule so established is sounder in principle, as well as simpler in application, than that which makes the effect of the act of self-destruction, upon the interests of those for whose benefit the policy was made, to depend upon the very subtle and difficult question, how far any exercise of the will can be attributed to a man who is so unsound of mind that, while he foresees the physical consequences which will directly result from his act, he cannot understand its moral nature and character, or in any just sense be said to know what it is that he is doing. If a man's reason is so clouded or disturbed by insanity as to prevent his understanding the real nature of his act, as regards either its physical consequences or its moral aspect, the case appears to us to come within the forcible words uttered by the late Mr. Justice NELSON, when chief justice of New York, in the earliest American case upon the subject: 'Speaking legally, also, (and the policy should be subjected to this test,) self-destruction by a fellow-being bereft of reason can with no more propriety be ascribed to his own hand than to the deadly instrument that may have been used for the purpose;' and, whether it was by drowning, or poisoning, or hanging, or in any other manner, 'was no more his act, in the sense of the law, than if he had been impelled by irresistible physical power.' Breasted v. Farmers' Trust & Loan Co. 4 Hill, 73, 75. Judgment affirmed.

108.US.143

1. If an action on the debt secured bya mortgage of real estate in the State of Texas is not barred by the statute of limitations, a suit on the mortgage itself is not barred, and this, whether the owner of the equity or a third person be the mortgage debtor. 2. A contract of a kind which a statute in Texas makes "void" for usury, is voidable only ; and a repeal of the statute declaring such contracts void deprives the debtor of the statutory defence. 3. When the amount of the face of a note represents a principal sum and interest thereon at a rate higher than the legal rate, and nothing is said in the note itself about interest, the note after maturity will bear interest at the legal rate.

Several defenses were made in the court below, the overruling of which are assigned for error, and which we proceed now to state and consider in their order. 1. The first defense is the statute of limitations, as contained in article 4604, Paschal, Dig., as follows: 'All actions of debt grounded upon any contract in writing shall be commenced and sued within four years next after the cause of such action or suit, and not after.' It is admitted that the cause of action upon the note was not barred when the action upon it was commenced, the period of limitation not expiring till July 29, 1872, excluding from the computation the interval between January 28, 1861, and March 30, 1870, as required by article 12, § 43, of the constitution of Texas of 1870. But the statute quoted does not apply to suits for the foreclosure of a mortgage and sale of the mortgaged property, such as the present. Such suits are not actions of debt grounded upon a contract in writing. They are suits to enforce the lien of the mortgage for the satisfaction of the debt secured by it. If that debt is barred by the statute of limitations, then, according to the law in Texas, the foreclosure suit is barred, but not otherwise, for the mortgage is a mere incident to the debt. It was so held by the supreme court of Texas in Eborn v. Cannon's Adm'r, 32 Tex. 244, where it says: 'If the notes were a subsisting debt at the time of the institution of the suit, not barred by the statute of limitations, the mortgage executed contemporaneously to secure their payment was still valid as long as the debt remained unsatisfied. No matter at what time the power of the court was invoked for its collection and foreclosure and for a decree to subject the mortgaged property to the satisfaction of the debt, it was opportune if the jurisdiction of the court over the debt itself was not ousted. The mortgage was but an incident of the debt, and the incident in law, as in logic, must abide the fate of the principal.' See, also, Parkins v. Sterne, 23 Tex. 561; Duty v. Graham, 12 Tex. 427; Flanigan v. Cushman, 48 Tex. 241. There is no force in the suggestion that, although the defense of the statute of limitations would not avail James B. Ewell, because judgment had been rendered against him before the bar took effect, it nevertheless is a protection to George W. Ewell, because he is a stranger to the judgment and mortgage, and the suit now pending was not brought till after the time limited for an action to recover the debt. For the present suit is not to recover the debt, nor is it a suit against George W. Ewell. He is a party defendant because he has an interest by a subsequent conveyance in the lands sought to be sold under the mortgage. He has an equity of redemption, which entitles him to prevent a foreclosure and sale by payment of the mortgage debt; but the debt he has to pay is not his own, but that of James B. Ewell. If he can show that that debt no longer exists, because it has been barred by the statute of limitations, he is entitled to do so; but he must do it by showing that it is barred as between the parties to it. If not, the land is still subject to the pledge, because the condition has not been performed. It is not to the purpose for the appellant to show that he owes the debt no longer, for in fact he never owed it at all; but his land is subject to its payment as long as it exists as a debt against the mortgagor, for that was its condition when his title accrued. 2. The second defense is that of usury. The statute of Texas on that subject has already been quoted. A contract of loan at a stipulated rate of interest greater than 12 per cent. per annum, is declared to 'be void and of no effect for the whole premium or rate of interest only;' but the principal sum may be received and recovered. The provision of the constitution of Texas, § 44, art. 12, repealing this and all existing usury laws, is as follows: 'All usury laws are abolished in this state, and the legislature is forbidden from making laws limiting the parties to contracts in the amount of interest they may agree upon for loans of money or other property; provided, this section is not intended to change the provisions of law fixing the rate of interest in contracts where the rate is not specified.' 2 Paschal, Dig. 1132. It is claimed by the appellant that, notwithstanding this repeal of the usury laws, the rights of the parties are to be determined according to the law in force at the time the transaction took place; thay by the terms of that law the contract between Daggs and James B. Ewell was void as to the entire interest reserved and paid; that no subsequent law could make valid a contract originally void; and that the appellant is not bound by the judgment rendered against James B. Ewell in favor of Daggs, and is entitled in the present suit to make the defense. It is quite true that the usury statute referred to declares the contract of loan, so far as the whole interest is concerned, to be void 'and of no effect.' But these words are often used in statutes and legal documents, such as deeds, leases, bonds, mortgages, and others, in the sense of voidable merely, that is, capable of being avoided, and not as meaning that the act or transaction is absolutely a nullity, as if it had never existed, incapable of giving rise to any rights or obligations under any circumstances. Thus we speak of conveyances void as to creditors, meaning that creditors may avoid them, but not others. Leases which contain a forfeiture of the lessee's estate for non-payment of rent, or breach of other condition, declare that on the happening of the contingency the demise shall thereupon become null and void, meaning that the forfeiture may be enforced by re-entry, at the option of the lessor. It is sometimes said that a deed obtained by fraud is void, meaning that the party defrauded may, at his election, treat it as void. All that can be meant by the term, according to any legal usage, is that a court of law will not lend its aid to enforce the performance of a contract which appears to have been entered into by both the contracting parties for the express purpose of carrying into effect that which is prohibited by the law of the land. Broom, Leg. Max. 732. And Lord MANSFIELD, in Holman v. Johnson, Cowp. 343, stated the ground on which, in such cases, courts proceed. He said: 'The principle of public policy is this: ex dolo mala non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If from the plaintiff's own stating or otherwise, the cause of action appear to arise ex turpi causa, or the transgression of a positive law of this country, then the court says he has no right to be assisted. It is upon that ground the court goes, not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.' And the effect is the same, if the contract is, in fact, illegal, as made in violation of a statute, whether the statute declares it to be void or not. Bank of U. S. v. Owens, 2 Pet. 527. 'There can be no civil right,' said Mr. Justice JOHNSON, in that case, 'when there can be no legal remedy; and there can be no legal remedy for that which is itself illegal.' A distinction is made between acts which are mala in se, which are generally regarded as absolutely void, in the sense that no right or claim can be derived from them, and acts which are mala prohibita, which are void or voidable, according to the nature and effect of the act prohibited. Fletcher v. Stone, 3 Pick. 250. It was accordingly held in Massachusetts that a mortgage or assurance given on a usurious consideration, was only voidable, notwithstanding the strong words of the statute. Green v. Kemp, 13 Mass. 515. And, in such cases, the advance of the money, although the contract is illegal for usury, is a meritorious consideration, sufficient to support a subsequent liability or promise, when the positive bar of the statute has been removed. 'A man by express promise may render himself liable to pay back money which he had received as a loan, though some positive rule of law or statute intervened at the time to prevent the transaction from constituting a legal debt.' Flight v. Reed, 1 Hurl. & C. 703; 32 Law J. Rep. (N. S.) Ex. 265. The effect of the usury statute of Texas was to enable the party sued to resist a recovery against him of the interest which he had contracted to pay, and it was, in its nature, a penal statute inflicting upon the lender a loss and forfeiture to that extent. Such has been the general, if not uniform, construction placed upon such statutes. And it has been quite as generally decided that the repeal of such laws, without a saving clause, operated retrospectively, so as to cut off the defense for the future, even in actions upon contracts previously made. And such laws, operating with that effect, have been upheld, as against all objections on the ground that they deprived parties of vested rights, or impaired the obligation of contracts. The very point was so decided in the following cases: Curtis v. Leavitt, 15 N. Y. 1; Savings Bank v. Allen, 28 Conn. 97; Welch v. Wadsworth, 30 Conn. 149; Andrews v. Russell, 7 Blackf. 474; Wood v. Kennedy, 19 Ind. 68; Town of Danville v. Pace, 25 Grat. 1; Parmelee v. Lawrence, 48 Ill. 331; Woodruff v. Scruggs, 27 Ark. 26. And these decisions rest upon solid ground. Independent of the nature of the forfeiture as a penalty, which is taken away by a repeal of the act, the more general and deeper principle on which they are to be supported is, that the right of a defendant to avoid his contract is given to him by statute, for purposes of its own, and not because it affects the merits of his obligation; and that whatever the statute gives, under such circumstances, as long as it remains in fieri, and not realized by having passed into a completed transaction, may, by a subsequent statute, be taken away. It is a privilege that belongs to the remedy, and forms no element in the rights that inhere in the contract. The benefit which he has received as the consideration of the contract, which, contrary to law, he actually made, is just ground for imposing upon him, by subsequent legislation, the liability which he intended to incur. That principle has been repeatedly announced and acted upon by this court. Read v. Plattsmouth, decided at the present term, [ante, 208.] And see Lewis v. McElvain, 16 Ohio, 347; Johnson v. Bentley, Id. 97; Trustees v. McCaughey, 2 Ohio St. 155; Satterlee v. Mathewson, 16 Serg. & R. 169; 2 Pet. 380; Watson v. Mercer, 8 Pet. 88. The right which the curative or repealing act takes away in such a case is the right in the party to avoid his contract, a naked legal right which it is usually unjust to insist upon, and which no constitutional provision was ever designed to protect. Cooley, Const. Lim. 378, and cases cited. The case of Smith v. Glanton, 39 Tex. 365, cited and relied on by counsel for the appellant, we cannot accept as a settlement of the law of Texas to the contrary. The opinion does not consider the question, but dismisses it on the assumption that the fact that the action was brought before the adoption of the constitution which contained the repeal of the usury laws, prevented the application of the rule. It is our opinion, therefore, that the defense of usury cannot avail the appellant, by reason of the constitutional repeal of the statute, on the continued existence of which alone his defense rested. 3. It is next objected that there is error in the amount of the decree, in allowing interest at the rate of 12 per cent. per annum on the amount of the judgment against James B. Ewell, instead of finding the amount due, irrespective of the judgment, by calculating interest upon the note itself since its maturity, giving proper credits for payments, at the rate of 8 per cent. per annum. The amount of the alleged error is $805.25, being the difference between $5,980.22, which is said to be the amount of the decree, and $5,174.97, which it is claimed is the true amount. The law of Texas provides that 'on all written contracts ascertaining the sum payable, when no specified rate of interest is agreed upon by the parties, interest shall be allowed at the rate of 8 per cent. per annum from and after the time when the sum is due and payable.' Paschal, Dig. Laws, art. 3940; Rev. St. 1879, art. 2976. And also that 'all judgments of the several courts of this state shall bear interest at the rate of 8 per cent. per annum from and after the date of the judgment, except when the contract upon which the judgment is founded bears a specified interest greater than 8 per cent. per annum, and not exceeding the highest rate of conventional interest permitted by law, (12 per cent.,) in which case the judgment shall bear the same rate of interest specified in such contract, and after the date of such judgment.' Paschal, Dig. art. 3943; Rev. St. 1879, art. 2980. The contract on which the judgment was founded stipulated for no rate of interest, the interest reserved being added to the principal in the note itself, and, consequently, it is evident that the decree should not have allowed interest on the debt at a rate greater than 8 per cent. The amount of the decree should have been the sum actually due upon the mortgage debt at the rate of its maturity, May 27, 1859, with interest thereon at the rate of 8 per cent. per annum to the time of the decree, April 25, 1879, giving proper credit for payments made on account from to time, which amounts to $5,174.97, and on which interest is to be allowed at the same rate until paid. In our opinion, the appellant is entitled to have this correction made. He is not bound by the judgment against James B. Ewell, to which he is neither party nor privy, and which was rendered after the appellant acquired his title to the land. He is consequently not cut off from his right to set up the matter, on which he now insists. Lloyd v. Scott, 4 Pet. 205; Brolasky v. Miller, 1 Stockt. 807; Berdan v. Sedgwick, 44 N. Y. 626; Post v. Dart, 8 Paige, 640;Green v. Tyler, 39 Pa. St. 361. The decree is therefore modified in respect to the amount found to be due and the rate of interest to be allowed thereon, as already indicated, and with this modification, affirmed, each party paying his own costs in this court.

109.US.200

1. Where the language of a contract is susceptible of two meanings, the court will infer the intention of the parties and their relative rights and obligations from the circumstances attending the transaction. 2. The parties contracted for the rebuilding of a shop at the NorfolkNavyYard, which had been destroyed by fire. The speeifications provided that "the foundation and the brick walls now, standing that were uninjured by the fire will remain and will be carried up to the height designated in the plan by new work." After taking downso much of the old wall as was supposed to be injured, the government officers directed parties to examine the then condition of the walls before bidding on the specifications. Defendant in ,-error did so, then bid, and his bid was accepted. Held, that the United States through its officers was bound to point out to bidders the parts of the walls which were to enter into the new structure,*a nd that this was done by the.act of dismantling a portion and leaving the rest of the wall to'stand. 8. Payments under the contract were to be made in instalments and the balance when the work should be entirely completed. The contract also contemplated extra work. fl d, that the cause of action for such extra work arose on the entire completion of the work. The principal question in this case related to the proper construction of a building contrat between the parties, entered into May 22d, 1866, the United States acting by Joseph Smith, chief of the bureau of yards and docks, under the authority of the Navy Department, for the repair of the entrance buildings and carpenter-shop at the Norfolk Navy Yard, which had been destroyed by fire in 1861, at the outbreak of the civil war.. I The contract required the appellee to furnish, at his own risk and expense, all the materials and work necessary for the repairs of the buildings according to the plans and specifications annexed, the entrance buildings to be entirely completed

In our opinion the court of claims committed no error in allowing the claim of the contractor. The language of the specifications is, perhaps, susceptible of two meanings. According to one, it is as if read that 'the foundations and the brick walls now standing,' so far as they 'were uninjured by the fire, will remain;' according to the other, that 'the foundations and brick walls now standing,'being such as 'were uninjured by the fire, will remain.' But, without going into any refinements of merely verbal interpretation, we think the meaning of the parties, explained by the circumstances attending the transaction, is sufficiently plain, and determines satisfactorily their relative rights and obligations. It must be conceded, we think, that it was intended that the old portion of the work was to remain as part of the new structure only so far as it was, in fact, fit to do so, having reference to the character and uses of the building, and that the United States had the right to determine the fact of fitness. It was clearly its interest to do so, in advance of bidding, because if it reserved the right to make the determination at any stage in the progress of the work, or even at the time of final acceptance on its completion, the whole risk of the contingency would be thrown upon the contractor, who could only indemnify himself by an increase in the estimate of probable cost; and the government would thus be compelled to pay for an uncertainty which could as well be resolved in advance. The United States having a right to determine the fact, it would be reasonable, having regard merely to its own interests, to do so before letting the contract. It would be equally reasonable and just to the contractor that the decision should be made at the outset; and as the right to make it belongs to the proprietor, the duty follows to exercise it so that the contractor shall not be misled and injured. Under the circumstances in the present case, and according to the terms of the specifications, we think it was the duty of the officers acting for the United States, the right performance of which the government assumed, to point out to the bidders the parts of the foundations and walls which were in fact so far uninjured as to enter into the new structure, and that this was actually done by dismantling and stripping the burnt building, so that upon inspection of what was left standing the proposing contractor would be able by measurement to ascertain precisely what new work he was to do, and be paid for. To require him to determine the fact for himself provisionally, subject at any time before completion of the work to have his judgment reversed, and to be required in consequence to perform work which he could not and did not provide for in his estimates, would be unreasonable and unjust. The inspection invited by the advertisement was not for the purpose of assisting the contractor to determine subject to such a condition the question of the fitness of the standing walls to remain, but was, as we think, that he might see, as part of the plan of the work, what the authorized agents of the United States had designated as intended to remain in the permanent structure. It was the duty of the United States to point out the work deemed to be sufficiently uninjured to remain, and this was performed by allowing it to stand, and by not directing it to be taken down. We lay no stress, as the court of claims did not, on what was said at the time to that effect by unauthorized subordinates. The foundation and walls themselves, as left standing by authority of the proper officers, constituted under the circumstances a representation on the part of the United States that they had been adjudged to be so far uninjured by fire that they were to remain, upon the faith of which the intending contractor was entitled to rely for the purpose of estimating the probable cost of the work to be done. Judgment in favor of the appellee was rendered by the court of claims upon two other claims for small amounts, in respect to which we do not deem it necessary to say more than that it appears to us the allowance was proper. The defense by reason of the statute of limitations, also for the reasons alleged in the opinion of that court, was, in our opinion, properly overruled. The judgment of the court of claims is accordingly affirmed.

109.US.432

Payment to an attorney in fact, constituted such by power of attorney executed by the claimants before the allowance of their claim by Congress or by the proper department, is good as between the government and such claimants, where the power of attorney has not been revoked at the time payment is made, notwithstanding the provisions of the act of July 29th, 1846, entitled "'A n Act in relation to the payment of claims," and the act of February 26th, 1853, entitled "An Act to prevent frauds upon the treasury of the United States." 9 Stat. 41, and 10 Stat. 170.

'It is understood that the circuit court sustained the demurrer under the pressure of the strong language of the opinion in Spofford v. Kirk. We do not think, however, that the circumstances of the present case bring it within the one then under consideration, or the principles there laid down. That was a case of the transfer or assignment of a part of a disputed claim, then in controversy, and it was clearly within all the mischiefs designed to be remedied by the statute. Those mischiefs, as laid down in that opinion, and in the others referred to, are mainly two: (1) The danger that the rights of the government might be embarrassed by having to deal with several persons instead of one, and by the introduction of a party who was a stranger to the original transaction; (2) that by a transfer of such a claim against the government to one or more persons not originally interested in it, the way might be conveniently opened to such improper influences in prosecuting the claim before the departments, the courts, or the congress, as desperate cases, where the reward is contingent on success, so often suggest.' 'But these considerations,' the court proceeded to say, 'as well as a careful examination of the statute, leave no doubt that its sole purpose was to protect the government and not the parties to the assignment.' These cases show that the statutes in question are not to be interpreted according to the literal acceptation of the words used. They show that there may be assignments or transfers of claims against the government which are not forbidden. In the case before us no question arises as to the transfer or assignment of a claim against the government. The question is whether payment to one, who has been authorized to receive it, by the power of attorney executed before the allowance of the claim by the act of congress, was good as between the government and the claimant, where, at the time of payment, such power of attorney was unrevoked. If, in respect of transfers or assignments of claims, the purpose of the statute, as ruled in Goodman v. Niblack, was to protect the government, not the claimant in his dealings with the government, it is difficult to perceive upon what ground it could be held that the statutory inhibition upon powers of attorney in advance of the allowance of the claim and the issuing of the warrant, can be used to compel a second payment after the amount thereof has been paid to the person authorized by the claimant to receive it. A mere power of attorney given before the warrant is issued—so long, at least, as it is unexecuted—may undoubtedly be treated by the claimant as absolutely null and void in any contest between him and his attorney in fact. And it may be so regarded by the officers of the government whose duty it is to adjust the claim and issue a warrant for its amount. But if those officers chose to make payment to the person whom the claimant, by formal power of attorney, has accredited to them, as authorized to receive payment, the claimant cannot be permitted to make his own disregard of the statute the basis for impeaching the settlement had with his agent. To hold otherwise would be inconsistent with the ruling heretofore made—and with which, upon consideration, we are entirely satisfied—that the purpose of congress, by the enactments in question, was to protect the government against frauds upon the part of claimants and those who might become interested with them in the prosecution of claims, whether before congress or the several departments. The title of the act of 1853 suggests this purpose. It is to prevent frauds upon the treasury. An effectual means to that end was to authorize the officers of the government to disregard any assignment or transfer of a claim, or any power of attorney to collect it, unless made or executed after the allowance of the claim, the ascertainment of the amount due thereon, and the issuing of the warrant for the payment thereof. Other sections of the statute—those forbidding officers of the government and members of congress from prosecuting or becoming interested in claims against the government, and those punishing the bribery or undue influencing of such officers or members—sustain the view that what was in the mind of congress was to protect the government in the matter of claims against it. But if the protection of claimants was at all in the mind of congress when passing the acts of 1846 and 1853, it is quite certain that the courts should not, to the injury of the government, extend that protection to those who elected not to avail themselves of the provisions of those statutes. Here it is not denied that the power of attorney executed in 1869 embraces and was intended to embrace the claims arising out of the decree of 1868, from whatever source the money in satisfaction of it might be derived. Nor is it pretended that such power of attorney had been revoked prior to the adjustment and payment of the claims in question. It seems to us—looking at the mischiefs intended to be remedied by these statutes and giving the words of congress a reasonable interpretation—that the officers of the treasury were at liberty, as between the government and the claimants, to recognize the unrevoked authority which the latter had given to Godeffroy, without restriction as to time, to receive from any one whom it might concern to pay all sums of money due or to become due and payable on account of the seizure of the vessel Labuna. The judgment must therefore be affirmed. It is so ordered.

108.US.564

Where, in an action of trespass in which a count of trespass quare clausum, is joined to a count of trespass de bonis asportatis,t he defendant sets up no plea of title, and it does not in any way appear by the record that title is involved, and the plaintiff recovers judgment for a sum less than $5,000, the defendant cannot bring the cause here on a writ of error, even though the judgment below may operate collaterally to estop the parties in another suit.

This was an action of trespass brought by Trotter to recover damages of the New Jersey Zinc Company for entering on his lands and digging up and carrying away a quantity of franklinite ore. There were three counts in the declaration—two quare clausum fregit, and one de bonis asportatis. The plea was not guilty. No other issue was raised by the pleadings. Neither party set up title, so that the only matter in dispute was the liability of the zinc company to pay for the ore which it was alleged had been wrongfully taken and carried away. Trotter recovered a judgment for $3,320 damages, and $752.25 costs of suit. From that judgment the zinc company brought this writ of error, which Trotter now moves to dismiss because the value of the matter in dispute does not exceed $5,000. As we decided at the present term in Hilton v. Dickinson, ante, 424, our jurisdiction is determined by the value of the matter in dispute in this court, and the matter in dispute here in the present case is the judgment below for less than $5,000. It may be that the question actually litigated below related to the title of the parties to the land from which the ore in controversy was taken, and that the verdict will be conclusive on that question as an estoppel in some other case; but, as was also said at the present term, in Elgin v. Marshall, 106 U. S. 579, [S. C. 1 SUP. CT. REP. 484,] for the purpose of estimating the value on which our jurisdiction depends, reference can only be had to the matter actually in dispute in the particular cause in which the judgment to be reviewed was rendered, and we are not permitted to consider the collateral effect of the judgment in another suit between the same or other parties. It is the money value of what has been actually adjudged in the cause that is to be taken into the account, not the probative force of the judgment in some other suit. Here the thing and the only thing adjudged is that the zinc company was guilty of the particular trespass complained of, and must pay Trotter $3,320 for the ore taken away. Had the zinc company pleaded title to the land from which the ore was taken, and issue had been joined on that plea, a different question would have been presented. In that way, the land might have been made the matter for adjudication, and thus the matter in dispute on the record. But, as this case stands, only the possession of Trotter and his right to the ore are involved. It may be that, in order to find possession in Trotter, the jury were compelled to find that he had title to the land, and that in this way the verdict and the judgment may estop the parties in another suit; but that will be a collateral, not the direct, effect of the judgment. The motion to dismiss is granted.

108.US.317

1. In an action at law damages may be recovered against a person who maintains a nuisance which renders the ordinary use and occupation of property physically uncomfortable to its owner; and if the cause of the annoyance and discomfort be continuous, equity will restrain it. 2. The measure of damages in an action at law against the maintenance of a nuisance affecting real estate is not simply the depreciation of the property. The jury are authorized also to take into consideration personal discomfort which may be caused by the nuisance, and any causes which produce a constant apprehension of danger in their estimate of damages, even if there be no arithmetical rule for the estimate. 3. Corporations are equally responsible with individuals to respond in damages for injuries caused by nuisances maintained by their servants by the authority of the corporation. 4. Corporations may recover as plaintiffs for injuries done to their property by a nuisance; and where the corporation plaintiff is a religious corporation, and its members suffer personal discomfort and apprehension of danger in the use of the corporate property, the corporation may recover for such injuries. A religious congregation has the same right to the comfortable enjoyment of its church for its own purposes, that a private individual has to the comfortable enjoyment of his house. 5. Legislative authority to a railroad company to bring its tracks within municipal limits and to construct shops and engine houses there, does not confer authority to maintain a nuisance. 6. Legislative authorization exempts from liability to sults civil or criminal, at the instance of the State; but it does not affect claims of private citizens for damages for special inconvenience and discomfort, not experienced by the public at large.

If the facts are established which the evidence tended to prove, and from the verdict of the jury we must so infer, there can be no doubt of the right of the plaintiff to recover. The engine-house and repair-shop of the railroad company, as they were used, rendered it impossible for the plaintiff to occupy its building with any comfort as a place of public worship. The hammering in the shop, the rumbling of the engines passing in and out of the engine-house, the blowing off of steam, the ringing of bells, the sounding of whistles, and the smoke from the chimneys, with its cinders, dust, and offensive odors, created a constant disturbance of the religious exercises of the church. The noise was often so great that the voice of the pastor while preaching could not be heard. The chimneys of the engine-house bing lower than the windows of the church, smoke and cinders sometimes entered the latter in such quantities as to cover the seats of the church with soot and soil the garments of the worshipers. Disagreeable odors, added to the noise, smoke, and cinders, rendered the place not only uncomfortable, but almost unendurable as a place of worship. As a consequence, the congregation decreased in numbers, and the Sunday-school was less numerously attended than previously. Plainly the engine-house and repair-shop, as they were used by the railroad company, were a nuisance in every sense of the term. They interfered with the enjoyment of property which was acquired by the plaintiff long before they were built, and was held as a place for religious exercises, for prayer and worship; and they disturbed and annoyed the congregation and Sunday-school which assembled there on the Sabbath and on different evenings of the week. That is a nuisance which annoys and disturbs one in the possession of his property, rendering its ordinary use or occupation physically uncomfortable to him. For such annoyance and discomfort the courts of law will afford redress by giving damages against the wrong-doer, and when the cause of the annoyance and discomfort are continuous, courts of equity will interfere and restrain the nuisance. Crump v. Lambert, L. R. 3 Eq. 409. The right of the plaintiff to recover for the annoyance and discomfort to its members in the use of its property, and the liability of the defendant to respond in damages for causing them, are not affected by their corporate character. Private corporations are but associations of individuals united for some common purpose, and permitted by the law to use a common name, and to change its members without a dissolution of the association. Whatever interferes with the comfortable use of their property, for the purposes of their formation, is as much the subject of complaint as though the members were united by some other than a corporate tie. Here the plaintiff, the Fifth Baptist Church, was incorporated that it might hold and use an edifice, erected by it, as a place of public worship for its members and those of similar faith meeting with them. Whatever prevents the comfortable use of the property for that purpose by the members of the corporation, or those who, by its permission, unite with them in the church, is a disturbance and annoyance; as much so as if access by them to the church was impeded and rendered inconvenient and difficult. The purpose of the organization is thus thwarted. It is sufficient to maintain the action to show that the building of the plaintiff was thus rendered less valuable for the purposes to which it was devoted. The liability of the defendant for the annoyance and discomfort caused is the same, also, as that of individuals for a similar wrong. The doctrine which formerly was sometimes asserted, that an action will not lie against a corporation for a tort, is exploded. The same rule in that respect now applies to corporations as to individuals. They are equally responsible for injuries done in the course of their business by their servants. This is so well settled as not to require the citation of any authorities in its support. It is no answer to the action of the plaintiff that the railroad company was authorized by act of congress to bring its track within the limits of the city of Washington, and to construct such works as were necessary and expedient for the completion and maintenance of its road, and that the engine-house and repair-shop in question were thus necessary and expedient; that they are skillfully constructed; that the chimneys of the engine-house are higher than required by the building regulations of the city; and that as little smoke and noise are caused as the nature of the business in them will permit. In the first place, the authority of the company to construct such works as it might deem necessary and expedient for the completion and maintenance of its road did not authorize it to place them wherever it might think proper in the city, without reference to the property and rights of others. As well might it be contended that the act permitted it to place them immediately in front of the president's house or of the capitol, or in the most densely populated locality. Indeed, the corporation does assert a right to place its works upon property it may acquire anywhere in the city. Whatever the extent of the authority conferred, it was accompanied with this implied qualification that the works should not be so placed as by their use to unreasonably interfere with and disturb the peaceful and comfortable enjoyment of others in their property. Grants of privileges or powers to corporate bodies, like those in question, confer no license to use them in disregard of the private rights of others, and with immunity for their invasion. The great principle of the common law, which is equally the teaching of Christian morality, so to use one's property as not to injure others, forbids any other application or use of the rights and powers conferred. Undoubtedly a railway over the public highways of the district, including the streets of the city of Washington, may be authorized by congress, and if when used with reasonable care it produces only that incidental inconvenience which unavoidably follows the additional occupation of the streets by its cars, with the noises and disturbances necessarily attending their use, no one can complain that he is incommoded. Whatever consequential annoyance may necessarily follow from the running of cars on the road with reasonable care is damnum absque injuria. The private inconvenience in such case must be suffered for the public accommodation. But the case at bar is not of that nature. It is a case of the use by the railroad company of its property in such an unreasonable way as to disturb and annoy the plaintiff in the occupation of its church to an extent rendering it uncomfortable as a place of worship. It admits, indeed, of grave doubt whether congress could authorize the company to occupy and use any* premises within the city limits in a way which would subject others to physical discomfort and annoyance in the quiet use and enjoyment of their property, and at the same time exempt the company from the liablility to suit for damages or compensation, to which individuals acting without such authority would be subject under like circumstances. Without expressing any opinion on this point, it is sufficient to observe that such authority would not justify an invasion of others' property, to an extent which would amount to an entire deprivation of its use and enjoyment, without compensation to the owner. Nor could such authority be invoked to justify acts creating physical discomfort and annoyance to others in the use and enjoyment of their property, to a less extent than entire deprivation, if different places from those occupied could be used by the corporation for its purposes, without causing such discomfort and annoyance. The acts that a legislature may authorize, which, without such authorization, would constitute nuisances, are those which affect public highways or public streams, or matters in which the public have an interest and over which the public have control. The legislative authorization exempts only from liability to suits, civil or criminal, at the instance of the state; it does not affect any claim of a private citizen for damages for any special inconvenience and discomfort not experienced by the public at large. Thus, in Sinnickson v. Johnsons, 2 Har. 151, it was held by the supreme court of New Jersey that an act of the legislature authorizing an individual to erect a dam across a navigable water constituted no defense to an action for damages for an overflow caused by the dam. 'It may be lawful,' said the court, 'for him [the grantee of the power] and his assignees to execute this act, so far as the public interests, the rights of navigation, fishing etc., are concerned, and he may plead, and successfully plead, the act to any indictment for a nuisance, or against any complaint for an infringement of the public right, but cannot plead it as a justification for a private injury which may result from the execution of the statute.' In Crittenden v. Wilson, 5 Cow. 165, it was held by the supreme court of New York that an act authorizing one to build a dam, on his own land, upon a creek or river which was a public highway, merely protected him from indictment for a nuisance. If, said the court, there had been no express provision in the act for the payment of damages, the defendant would still have been liable to pay them, and the effect of the grant was merely to authorize the defendant to erect a dam, as he might have done, if the stream had been his own, without a grant. In such a case he would have been responsible in damages for all the injury occasioned by it to others. In Brown v. Cayuga & S. R. Co. 12 N. Y. 491, the company was sued for overflowing plaintiff's land by means of a cut through the banks of a stream which its road crossed. It pleaded authority by its charter to cross highways and streams, and that the cut in question was necessary to the construction and maintenance of the road. But it was held that the company was liable for damages caused. 'It would be a great stretch,' said the court, 'upon the language, and an unwarrantable imputation upon the wisdom and justice of the legislature, to hold that it imports an authority to cross the streams in such a manner as to be the cause of injury to others' adjoining property.' And so the court adjudged that the company was under the same obligation as a private owner of the land and stream, had he bridged it; and that the right granted to bridge the stream gave no immunity for damages which the excavation of its banks for that purpose might cause to others. In Com. v. Kidder, in the supreme court of Massachusetts, (107 Mass. 188,) a statute of that state authorized the storage, keeping, manufacture, and refining of crude petroleum or any of its products in detached and properly-ventilated buildings, specially adapted to that purpose; and it was held that it did not justify the refining of petroleum at any place, where a necessary consequence of the munufacture was the emission of vapors which constitute a nuisance at common law by their unwholesome and offensive nature. Numerous other decisions from the courts of the several states might be cited in support of the position that the grant of powers and privileges to do certain things does not carry with it any immunity for private injuries which may result directly from the exercise of those powers and privileges. If, as asserted by the defendant, the noise, smoke, and odors, which are the cause of the discomfort and annoyance to the plaintiff, are no more than must necessarily arise from the nature of the business carried on with an engine-house and work-shop as ordinarily constructed, then the engine-house and work-shop should be so remodeled and changed in their structure as to prevent, if that be possible, the nuisance complained of; and, if that be not possible, they should be removed to some other place where, by their use, the plaintiff would not be thus annoyed and disturbed in the enjoyment of its property. There are many places in the city sufficiently distant from the church to avoid all cause of complaint, and yet sufficiently near the station of the company to answer its purposes. There are many lawful and necessary occupations which, by the odors they engender or the noise they create, are nuisances when carried on in the heart of a city, such as the slaughtering of cattle, the training of tallow, the burning of lime, and the like. Their presence near one's dwelling-house would often render it unfit for habitation. It is a wise police regulation, essential to the health and comfort of the inhabitants of a city, that they should be carried on outside of its limits. Slaughter-houses, lime-kilns, and tallow-furnaces are, therefore, generally removed from the occupied parts of a city, or located beyond its limits. No permission given to conduct such an occupation within the limits of a city would exempt the parties from liability for damages occasioned to others, however carefully they might conduct their business. Fish v. Dodge, 4 Denio, 321. The fact that the smoke-stacks of the engine-house were as high as the city regulations for chimneys required, is no answer to the action, if the stacks were too low to keep the smoke out of the plaintiff's church. In requiring that chimneys should have a certain height, the regulations did not prohibit their being made higher, nor could they release from liability if not made high enough. It is an actionable nuisance to build one's chimneys so low as to cause the smoke to enter his neighbor's house. If any adjudication is wanted for a rule so obvious, it will be found in the cases of Sampson v. Smith, 8 Sim. 272, and Whitney v. Bartholomew, 21 Conn. 213. The instruction of the court as to the estimate of damages was correct. Mere depreciation of the property was not the only element for consideration. That might, indeed, be entirely disregarded. The plaintiff was entitled to recover because of the inconvenience and discomfort caused to the congregation assembled, thus necessarily tending to destroy the use of the bilding for the purposes for which it was erected and dedicated. The property might not be depreciated in its salable or market value, if the building had been entirely closed for those purposes by the noise, smoke, and odors of the defendant's shops. It might then, perhaps, have brought in the market as great a price to be used for some other purpose. But, as the court below very properly said to the jury, the congregation had the same right to the comfortable enjoyment of its house for church purposes that a private gentleman has to the comfortable enjoyment of his own house, and it is the discomfort and annoyance in its use for those purposes which is the primary consideration in allowing damages. As with a blow on the face, there may be no arithmetical rule for the estimate of damages. There is, however, an injury, the extent of which the jury may measure. Judgment affirmed.

109.US.229

Bonds of the kind involved in these suits are debts of the county. Holders are entitled to payment out of the general funds of the county raised by taxation for ordinary use, after exhausting the special fund. The majority of the court adhere to the rulings in United States v. Clark County, 9 U. S. 211 ; United States v. M3facon County, 99 U. S. 582, 589 ; and Miracon County v. Huidekoper, 99 U S. 592.

In U. S. v. County of Clark, 96 U. S. 211, it was decided at the October term, 1877, that bonds of the character of those involved in the present suits were debts of the county, and that for any balance remaining due on account of principal or interest after the application of the proceeds of the special tax of one-twentieth of 1 per cent. the holders were entitled to payment out of the general funds of the county. This, we all agree, means that the payment of this balance is demandable out of funds raised by taxation for ordinary county uses. The mandamus applied for in that case was one 'requiring the county court and the justices thereof to direct the clerk of the county to draw a warrant on the county treasurer for the balance of the judgment remaining unpaid, so that he might be enabled, on its presentation, to have it paid in its order out of the county treasury,' and there was no fund out of which the payment could be made, except that raised by taxation for ordinary county uses. By the judgment of this court, such a mandamus was awarded. At the next term, in 1878, the point thus decided was explicitly stated in U. S. v. County of Macon, 99 U. S. 589; and in Macon Co. v. Huidekoper, Id. 592, a majority of the court adhered to the decision, and ordered judgment accordingly. It was conceded on the argument that all the judgments now under consideration must be affirmed, unless these cases are overruled. This a majority of the court are unwilling to do, and judgments of affirmance are consequently ordered.

107.US.90

1. Whether claim 3 of letters-patent No. 67,046, granted to Joseph L. Hall, July 23, 1867, for an "improvement in connecting doom and casings of safes," namely, "3. The conical or tapering arbors, 1, in combination with two or more plates of metal, in the doors and casings of safes and other secure receptacles, the arbors being secured in place in the plates by keys, 2, or in other substantial manner," -claims arbors which are tapped into two or more plates, or whether it excludes, as a part of it, screw-threads cut on the arbors, is immaterial in the present case, because, under the former view, the defendants are not shown to have used arbors with screw-threads on any part of the arbor within the plates, and, under the latter view, the claim is invalid. 2. The whole invention is described in letters-patent No. 30,140, granted to Hall, Sept. 25, 1860, for an "improvement in locks," and a cored conical bolt with a screw-thread on it is shown in those letters. A solid conical bolt having existed, adding the screw-thread to it is not an invention. 3. Solid conical bolts without screw-threads having been used in two safes made and sold by the inventor more than two years before his letters were applied for, the invention covered by claim 3 was in public use and on sale, with his consent and allowance, so as to make the claim invalid under sects. 7 and 15 of the act of July 4, 1836, c. 367, and sect. 7 of the act of March 3, 1839, c. 88.

This suit is brought on letters patent No. 67,046, granted to Joseph L. Hall, the appellant, July 23, 1867, for an 'improvement in connecting doors and casings of safes.' The only claim alleged to have been infringed is claim 3, which is in these words: '(3) The concial or tapering arbors, 1, in combination with two or more plates of metal, in the doors and casings of safes and other secure receptacles, the arbors being secured in place in the plates by keys, 2, or in other substantial manner.' In regard to what is embraced in this claim the specification says: 'The nature of this invention consists in * * * securing a series of plates forming a casing or door of the safe by means of conical or tapering arbors, which, being tapped in from the outside of the door or casing, and keyed upon the inside, present serious obstacles to the removal of successive plates forming the body of the safe. Figure 1 represents a perspective view of a safe embodying my invention. Figure 2 is a horizontal section of part of the same. Figure 3 is a detail view, in cross-section, of the door of the safe, showing the shape of, and manner of securing, an arbor. The most approved manner of securing together the numerous plates forming the casings and doors of safes is by means of screws tapped in from one series of pairs or triplets of plates from the inside presenting no rivet heads upon the outside surface of the safes. * * * In the doors of safes the outer plate, D, is secured to the plate, E, F, by screws, b, countersunk in the plate, F. * * * The fourth plate, I, has about the same area as the plate, E. It is secured to the plate, F, by screws, e, which pass through the inner plate, K, in which they are countersunk. * * * In order to still further secure together the plates forming the door of the safe, I use a conical arbor, 1, or a number, if necessary; they are introduced in openings through the series of plates, being tapped into the two innermost of all the plates, and keyed in position. A smooth surface in the plane of the outer face of the door is presented, giving no means of removing the arbors, I, even should the key, 2, be removed. * * * Since the doors of safes are more exposed than any other part of them, it is necessary to embody in their construction such devices, which in themselves are the simplest, as shall effectually bar forcible entrance to the safes. The introduction of arbors for the purpose of more effectually binding in one compact mass the series of alternate iron and steel plates in the doors or bodies of safes will very much protract the labors of the burglar; indeed, it will be necessary, in order to remove one sheet in succession, to cut out the arbors, which are made of the hardest steel. The arbors may be tapped through the entire series of plates, and the inner end rivet-headed instead of keyed, as shown in the drawing, or the inner plate, as well as other in the series of plates, may be put together in sections, and, fitting into notches in the arboror arbors, secure them in position. In this latter construction the arbors need not be conical, but may have any cross-section, tapering longitudinally.' When the specification says that the conical arbors are 'tapped in from the outside,' it means that screw-threads are cut on them and take into screw-threads in the body, and that the arbors are screwed in and have their smaller end towards the inside. The drawing, figure 3, shows this, there being five plates, and the arbor being in position, and tapering from the outside to the inside, the larger end being towards the outside, and a screw-thread being cut on the arbor for the distance of the thickness of the two innermost plates, and the arbor extending through the five plates, from the outer surface of all to the inner surface of all, and a key extending from the inside lengthwise of the arbor, the distance of the length of the screw-thread. The arbors, the specification says, 'may be tapped through the entire series of plates;' that is, the entire length of the arbor may have a screw-thread cut on it, and the inner end may be rivet-headed; that is, headed down into a rivet instead of being keyed. A peculiarity of the conical arbors is stated in the specification to be that they are tapped in 'from the outside,' and 'keyed upon the inside,' in contradistinction to the then existing most approved method of having screws with conical heads, the heads being countersunk in one of the plates, and the cone shape of the heads holding the screws so as to make it unnecessary to rivet them on the outside of the safe, the screws not going through all the plates, the head of the screw being towards the inside of the safe and the other end of it not projecting beyond the outside. Whether claim 3, in claiming 'the conical or tapering arbors, 1, in combination,' etc., is to be held, in view of the description in the text of the specification, and of the drawing, figure 3, to necessarily claim arbors which are tapped into two or more plates, or whether that claim excludes as a part of it screw-threads cut on the arbors, is not material to this case. If the former, the appellees are not shown to have used arbors with screw-threads on any part of the arbor that is within the plates. If the latter, then, infringement being shown, we are satisfied that claim 3 cannot be sustained. The contention of the appellant is that the invention covered by that claim requires only a conical hole, conical through the entire series of plates to be secured, and a conical bolt corresponding thereto, and secured in place in the plates by a key, or in any other substantial manner. A patent was issued to the appellant September 25, 1860, for an 'improvement in locks.' The specification of that patent says: 'Resting upon the front plate, B, of the lock, as shown in figure 4, are seen two conical blocks, I, I', a plan of which is represented in figure 11. These are precisely alike in their construction, and they are adapted to the two stems, G and H, as will appear. They are of a length corresponding with the thickness of the door, M, to which the lock is applied, so that, when introduced into appropriate apertures in the door, their outer faces will be flush with the outer face of the door, and their inner faces flush with the inner face of the door, and against the front face of the lock, when the same is properly fixed upon the door. The blocks, I, I, enter their apertures in the door by a screw-thread, and they are held from turning therein, so as to return outwardly, by an ordinary key driven into a key-seat drilled from the inside of the door before the lock is applied to its place. * * * The conical blocks are cored or drilled out in a peculiar manner to receive the two-part revolving arbor, as shown, the part, p, (p',) entering the narrow end of the conical blocks, being of a cylindrical form, and the part, q, (q',) entering the large end of the conical blocks, being of a conical form.' These revolving arbors turn the stems, G and H, and thus the tumblers are adjusted and the bolt of the lock is thrown. The drawing of the patent shows the conical blocks, I, I', as passing entirely through the door, the larger end of the cone on the outside, and each end flush with its proper face. These conical blocks were screw-threaded on their surface in the door, and were keyed from the inside. They were cored, to admit the revolving arbors, but their bodies operated in all respects like the conical arbors of the patent sued on. In 1868 John Farrell and Jacob Weimar applied for a patent for the same thing covered by claim 3 of the patent sued on, and the patent-office declared an interference between their application and that patent. The appellant was examined as a witness on his own behalf, in October, 1868, in that interference, and testified as follows: 'Third interrogatory. State what knowledge you have had, in manufac turing safes, of the use of a series of plates united by conical bolts made drill-proof, and when and where you first had knowledge of their use. Answer. The first was in the year 1858 or 1859. I came across one John P. Lord's lock, which was said to be a combination, no-key-hole bank lock. I negotiated with the parties representing it, to try and introduce it and manufacture it. I then began to examine into it more particularly, and found that the knob or dial projecting through the door seemed to be very insecure in its construction. I set myself about so as to invent some better way of securing the protection to the lock and also the plates of the doors. I then invented a double and single conical-shaped arbor or plug, made drill-proof, composed of wrought-iron and steel welded together, the design of which was to fully protect the lock against sledge-hammers or other tools for driving the plug or plugs in, or from being drilled into, they being hardened. The further design of the said drill-proof plugs or arbors was to secure together a series of plates of wrought-iron and steel, or other suitable metal, whereby they could not be separated or pulled apart, more firmly binding them together than had been our former method of making safes, or joining together such series of plates. Some time after, during the year 1859 or 1860, the exact period of time I cannot remember fully, we made burglar-proof safes of a series of plates composed of iron and steel joined together, in which we had used more of the conical drill-proof bolts or arbors than we had formerly been in the habit of doing, for the express purpose of more securely fastening the plates together. We made them in the city of Cincinnati, in our factory, which was situated about the middle of the square bounded by Columbia, Sycamore, Front, and Main streets. We have also used them to a very considerable extent since that time, in our factory situated at the south-west corner of Plum and Pearl streets. I secured a patent for my double conical drill-proof arbor in the year 1860. My design of that was to secure full protection to combination no-key-hole bank locks. My single arbor I don't think I made any claim on at that time, but used it for the express purpose of binding the series of plates together. This was also a conical drill-proof bolt, made of iron and steel. Our modes of fastening the above-described arbors were in different ways. Some we made conical, at the smaller end were made soft, so that we could rivet them down into a countersunk plate; others we cut a thread upon at the small end of the arbor or drill-proof bolt, which was done, and, when fitted up, the conical-shaped arbor or bolt was tempered; others were made with a thread cut upon the end of them, designed for a nut, which was designed to be used on the smaller end of them to fasten them more securely, so that they could not be withdrawn from the outside. The conical-shaped arbor, with the thread cut upon the arbor, was designed to be screwed into the inner plate of a series of plates, and then a key-seat cut in each of the threads of the plate and of the arbor, so that keys could be driven in to prevent their being unscrwed and withdrawn from the outside, thereby making them secure against the drill or the use of the sledge-hammer or other tools for forcing them in, being of a conical shape, or from removing any of the series of plates through which they passed.' It is apparent from this testimony that the appellant regarded the double conical-shaped arbor or plug, that is, the cored conical block, and the single conical-shaped arbor or plug, as being the same invention. He was endeavoring to carry back to 1858 or 1859 the invention covered by claim 3 of his patent of 1867. The only difference he makes between the double and the single arbor is that the former had a core removed from it. The latter was solid. Both, he says, were drill-proof, and had the same further design or object, namely, to secure together a series of plates in safes. He also says that in 1859 or 1860 he made burglar-proof safes of a series of plates composed of iron and steel joined together, using in them these single conical bolts or arbors, for the express purpose of more securely fastening the plates together. He then describes the cutting of a thread upon the arbor and one of the plates to screw the arbor into the inner plate, and cutting a key-seat in the two threads, and putting in a key to prevent the arbor from being unscrewed from the outside. All this describes exactly what is covered by claim 3 of the patent sued on. In his testimony in the present suit the appellant states that he made three safes between 1859 and 1864 which were burglar-proof, and had conical bolts for fastening together the different plates of metal. One of them had the double conical bolt and no single bolt, and was sold to a firm in Dayton, Ohio. One was made in 1858 or 1859, to be exhibited at a fair in Ohio, and was sold to a banker in Lafayette, Indiana. It had the single drill-proof conical arbors in the doors. The third one was made to be exhibited at a fair held in 1860, and was sold to the treasurer of Loraine county, Ohio. It had a few of the single conical arbors. It does not distinctly appear that the single conical bolts in the Lafayette and Loraine county safes had screw-threads cut on them, but the appellant testifies in this case that the double arbor of his patent of 1860 had a screw-thread cut upon it running through one or more of the inner plates, for the purpose of holding it. It clearly appears, from the testimony of the appellant himself, that the idea of making a claim to the invention covered by claim 3 of the patent sued on arose from the introduction into safes, in 1866 or early in 1867, of plates of steel and iron welded together. This enabled the value of the screw-threaded conical bolt to be more fully developed, because the screw-thread could be made more effective the whole length of the bolt. But the whole invention existed in the bolt of the patent of 1860. There was no invention in adding to the solid conical bolt the screw-thread of the cored conical bolt. Moreover, the use and sale of the solid conical bolts in the Lafayette and Loraine county safes, even though those bolts had no screw-threads on them, constituted a use and sale of the invention covered by claim 3 of the patent in suit. The application for that patent was made in March, 1867, and the patent was granted under the provisions of the act of July 4, 1836, (5 St. at Large, 117,) and of the act of March 3, 1839, (Id. 353.) Within the meaning of sections 7 and 15 of the act of 1836, as modified by section 7 of the act of 1839, the invention covered by claim 3 of the patent in suit was in use and on sale more than two years before the appellant applied for that patent, and such use and sale were, also, with the consent and allowance of the appellant, and the use was a public use. It is contended that the safes were experimental, and that the use was a use for experiment. But we are of opinion that this was not so, and that the case falls within the principle laid down by this court in Coffin v. Ogden, 18 Wall. 120. The invention was complete in those safes. It was capable of producing the results sought to be accomplished, though not as thoroughly as with the use of welded steel and iron plates. The construction and arrangement and purpose and mode of operation and use of the bolts in the safes were necessarily known to the workmen who put them in. They were, it is true, hidden from view, after the safes were completed, and it required a destruction of the safe to bring them into view. But this was no concealment of them or use of them in secret. They had no more concealment than was inseparable from any legitimate use of them. As to the use being experimental, it is not shown that any attempt was made to see if the plates of the safes could be stripped off, and thus to prove whether or not the conical bolts were efficient. The safes were sold, and, apparently, no experiment and no experimental use were thought to be necessary. The idea of a use for experiment was an afterthough. An invention of the kind might be in use and no burglarious attempt be ever made to enter the safe, and it might be said that the use of the invention was always experimental until the burglarious attempt should be made, and so the use would never be other than experimental. But it is apparent that there was no experimental use in this case, either intended or actual. The foregoing views, which are controlling to show that claim 3 of the patent in suit cannot be sustained, are in accordance with those announced by this court in Egbert v. Lippmann, 104 U.S. 333. The decree of the circuit court dismissing the bill is affirmed, and the same decision is made in No. 165.*

106.US.466

1. Animals, specially imported from beyond the seas for breeding purposes, are not subject to duty. 2. The Secretary of the Treasury has no authority to prescribe a regulation requiring that, before admitting them free, the collector shall "be satisfied that they are of superior stock, adapted to improving the breed in the United States."

The secretary of the treasury cannot be his regulations alter or amend a revenue law. All he can do is to regulate the mode of proceeding to carry into effect what congress has enacted. In the present case we are entirely satisfied the regulation acted upon by the collector was in excess of the power of the secretary. The statute clearly includes animals of all classes. The regulations seek to confine its operation to animals of 'superior stock.' This is manifestly an attempt to put into the body of the statute a limitation which congress did not think it necessary to prescribe. Congress was willing to admit duty free all animals specially imported for breeding purposes. The secretary thought this privilege should be confined to such animals as were adapted to the improvement of breeds already in the United States. In our opinion, the object of the secretary could only be accomplished by an amendment of the law. That is not the office of a treasury regulation. It has been argued here that as it appears from the testimony, which has been incorporated into the bill of exceptions, that the importation in this case was from Prince Edward's island, it was not from 'beyond the seas,' and therefore that the judgment below was right. It is a sufficient answer to this objection that no such point was made below. The court was not asked to rule on any such question. Our examination is confined to such exceptions as were taken to the rulings actually made on the trial and incorporated in some form into the record, 'an authenticated transcript' of which is returned with our writ of error. The judgment of the circuit court is affirmed.

108.US.110

1. Municipal corporations, being created only to aid the State government in the legislation and administration of local affairs, possess only such powers as are expressly granted, or as may be implied because essential to carry into effect those wlich are expressly granted. 2. Bonds issued by a municipal corporation, but not under either a general authority to borrow for corporate purposes, or a special legislative authority to borrow for purposes within the power of the legislature to confer, are void in the hands of a person who is not an innocent bonaf ide holder without notice. 3. A municipal corporation authorized by its charter "to borrow money on the credit of the city and to issue bonds therefor," and by special act to borrow a named sum "to be expended in developing the natural advantages of the city for manufacturing purposes," is not thereby authorized to issue bonds by way of donation to an individual to aid in developing the water power of the city, and is not liable to an action upon such bonds by one who takes them with notice of the facts.

This is a suit to recover upon bonds issued by the city of Ottawa, Illinois, as a donation to aid in the improvement of the water-power upon the Fox and Illinois rivers within the city, or in its immediate vicinity. Other bonds of the same issue were involved in Hackett v. Ottawa, 99 U. S. 86, and Ottawa v. First Nat. Bank of Portsmouth, 105 U. S. 342, where it was held, in substance, that, as there was legislative authority to issue bonds for municipal purposes, and it was recited in the bonds then sued on that they were issued for such purposes, the city was estopped from proving, as against bona fide holders, that the recitals were untrue. Neither Hackett nor the bank had any knowledge of the precise purposes for which the bonds were issued, and it was adjudged that they had the right to rely on what was recited. The facts on which this case rests are, in brief, these: The city of Ottawa was incorporated as a city in Illinois on the tenth of February, 1853, and given the ordinary powers of municipal corporations of that class for local government. It was specially authorized 'to provide the city with water, to erect hydrants and pumps in the streets for the convenience of its inhabitants,' and, upon a vote of the people, 'to borrow money on the credit of the city, and to issue bonds therefor, and pledge the revenue of the city for the payment thereof.' Our attention has not been called to any other provision of the charter as having a bearing on the questions to be considered. In February, 1851, the Ottawa Manufacturing Company was incorporated by the general assembly of Illinois to build a dam across the Fox river for the purpose of creating a water-power to be leased and used. On the sixteenth of February, 1865, the charter of this company was amended so as to authorize the building of a dam across the Illinois river, and a race to bring the water from that river into the pool of the dam across the Fox. On the nineteenth of February, 1867, the general assembly passed an act purporting to constitute a board of commissioners to subscribe $100,000 to the capital stock of the manufacturing company for and on behalf of the city, and to pay the subscription by an issue of the bonds of the city. No subscription was ever made under this authority, and we understand the counsel for the defendant in error to concede that the act itself was unconstitutional. On the fifteenth of June, 1869, an ordinance was passed by the city submitting to the voters, at an election to be held on the twentieth of the same month, the question whether the council should borrow $60,000 on the bonds of the city to be 'expended in developing the natural advantages of the city for manufacturing purposes.' This election was held, and resulted in a vote by a majority of the legal voters in favor of the project. Thereupon, the city, on the thirtieth of July, 1869, passed another ordinance, directing the mayor to issue the bonds and deliver them to William H. W. Cushman, 'to be used by him in developing the natural resources and surroundings of the city,' and authorizing and directing him 'to expand the same in the improvement of the water-power upon the Illinois and Fox rivers, within the city and in the immediate vicinity thereof, under the franchises and powers which have been granted for that purpose by the legislature of the state, or which may hereafter be granted for that purpose, in the manner which, in his judgment, shall best secure the practical and permanent use of said power in the city and its immediate vicinity.' Under this ordinance the bonds were issued and delivered to Cushman on the second of August, 1869, as a donation to aid the city in securing the contemplated water-power, he agreeing in writing to cause the necessary works to be completed in the two rivers within a reasonable time, and, if not, to return the bonds, or a part thereof, according to the special provisions of the contract. No arrangements were made or contemplated for providing the city with water. Cushman was one of the original corporators of the manufacturing company, and a director at the time the bonds were issued to him, and he, on the eleventh of March, 1871, delivered them to the company 'to be used by said company for the purpose of making the improvement hereinbefore mentioned, without further consideration.' During the month of June, 1871, the company sold and delivered the bonds involved in this suit to Lester H. Eames, a citizen of Ottawa, for their face value and part of the interest which had accrued after August, 1870. When Eames made his purchase and paid for the bonds he knew they had been issued as a donation to aid in the completion of the improvement contemplated in the contract with Cushman, and was cognizant of all the proceedings of the council in reference thereto. He also knew of the contract with Cushman. In November, 1879, after the bonds fell due, Eames sold them to William H. Carey, the plaintiff below, who paid value for them, with full knowledge of all that was known by Eames about their issue. Upon these facts, found by the court and set forth in the record, judgment was rendered against the city and in favor of Carey for $72,814.76. To reverse that judgment this writ of error has been brought. This case differs from those of Hackett and the First Nat. Bank of Portsmouth, supra, in that Carey cannot claim protection as a bona fide holder, while Hackett and the bank could. Neither Carey, nor Eames, nor the manufacturing company, nor Cushman were purchasers without notice. Carey and Eames both paid value, but Carey bought after maturity, and it is expressly found that both he and Eames had actual knowledge of the purposes for which the bonds were issued and of the contract with Cushman. Under the circumstances of this case the manufacturing company is chargeable with knowledge of all the facts known to Cushman, one of its directors and the original contractor with the city. The questions then to be considered are such as may arise between the city and a purchaser for value from Cushman with full knowledge of all the facts affecting the validity of the bonds at their inception. In Illinois, under the constitution of the state, the corporate authorities of cities cannot be invested with power to levy and collect taxes except for corporate purposes. This has long been settled. Weightman v. Clark, 103 U. S. 259, and numerous Illinois cases there cited. What may be made a corporate purpose is not always easy to decide, but it has never been supposed that if legislative authority had not been granted to a municipal corporation to do a particular thing, that thing could be a purpose of that corporation. Municipal corporations are created to aid the state government in the regulation and administration of local affairs. They have only such powers of government as are expressly granted them, or such as are necessary to carry into effect those that are granted. No powers can be implied except such as are essential to the objects and purposes of the corporation as created and established. 1 Dill. Mun. Corp. § 89, (3d Ed.) and cases there cited. To the extent of their authority they can bind the people and the property subject to their regulation and governmental control by what they do, but beyond their corporate powers their acts are of no effect. It is not claimed that express authority was given the city of Ottawa to develop, or aid in developing, the natural advantages of its rivers for manufacturing purposes, and what we are now called on to decide is not whether, if such a power had been given, it would be within the general scope of the purposes of a city government, and thus a corporate purpose, within the meaning of that term as used in the constitution, but whether it has been granted by the legislature. Much is said by the supreme court of Illinois in Taylor v. Thompson, 42 Ill. 11; Chicago, D. & V. R. Co. v. Smith, 62 Ill. 268; People v. Depuyt, 71 Ill. 655; Burr v. City of Carbondale, 76 Ill. 455; People v. Trustees of Schools, 78 Ill. 137; Quincy, M. & P. R. Co. v. Morris, 84 Ill. 410; Hensley v. People, Id. 544, and other cases of like character, as to what may be made a corporate purpose, but these were all cases in which the legislative department of the government had undertaken to grant a power, and the question was whether the power was one that could rightfully be made a purpose of a municipal corporation. No matter how much authority there may be in the legislature to grant a particular power, if the grant has not been made the city cannot act under it. As power in a municipal corporation to borrow money and issue bonds therefor implies power to levy a tax for the payment of the obligation that is incurred, unless the contrary clearly appears, (Ralls Co. v. U. S. 105 U. S. 733,) it follows that the power contained in the charter to borrow money did not authorize the issue of the bonds in this case, unless they were issued for a corporate purpose, there being a constitutional prohibition against taxation by the city, except for corporate purposes. The question, then, is whether the city has been invested with power to raise money by public taxation to be donated to private persons or private corporations as a bonus for developing the water-power in the city or its vicinity for manufacturing purposes. The charter confers all the powers usually granted to a city for the purposes of local government, but that has never been supposed of itself to authorize taxes for everything which, in the opinion of the city authorities, would 'promote the general prosperity and welfare of the municipality.' Undoubtedly, the development of the water-power in the rivers that traverse the city would add to the commerce and wealth of the citizens, but certainly power to govern the city does not imply power to expend the public money to make the water in the rivers available for manufacturing purposes. It is because railroads are supposed to add to the general prosperity that municipalities are given power to aid in their construction by subscriptions to capital stock or donations to the corporation engaged in their construction, but in all the vast numbers of cases involving such subscriptions and donations that have come before this court for adjudication since Com'rs of Knox Co. v. Aspinwall, decided 25 years ago, and reported in 21 How. 539, it has never been supposed that the power to govern of itself implied power to make such subscriptions or such donations. On the contrary, it has been over and over again held, and as often as the question was presented, that unless the specific power was granted, all such subscriptions and all such donations, as well as the corporate bonds issued for their payment, were absolutely void, even as against bona fide holders of the bonds. Thompson v. Lee Co. 3 Wall. 330; Marsh v. Fulton Co. 10 Wall. 676; St. Joseph's Township v. Rogers, 16 Wall. 659; McClure v. Township of Osgood, 94 U. S. 432; Wells v. Sup'rs, 102 U. S. 630; Allen v. Louisiana, 103 U. S. 86. In the present case there is nothing whatever to indicate any special authority in this city to pay a bonus for the work that was to be done. It did have power to provide the city with water, but there is nowhere anything looking to such a purpose in this transaction. The object here was to bring the water into use as power, to be leased or sold at reasonable rates. An attempt was made by the legislature to authorize a subscription to the stock of the manufacturing company, but that was of no avail, because in the form adopted the legislation was confessedly unconstitutional. The charter, therefore, stands the same as though no such attempt had been made, and what was done did not create a corporate purpose to effect an improvement of the power. But even if there had been power to subscribe to the stock, it would not follow there was power to make a donation by way of a bonus to the company to aid in the improvement. In Chicago, D. & V. R. Co. v. Smith, supra, it was indeed said that the distinction between a donation to aid a company and a subscription to its stock 'was more apparent than real,' but that was said in reference to the question of making subscriptions and donations for corporate purposes, and not with reference to the effect of a power to subscribe as conferring a power to donate. In no case to which our attention has been called has it been held that a power to subscribe stock would of itself authorize a donation. The case of Hickling v. Wilson, decided by the supreme court of Illinois in June of last year, and reported in 104 Ill. 54, is relied upon in support of this judgment. That was a suit by a creditor of the manufacturing company against the stockholders to collect his debt. The city was not a party, and its liability was in no way involved. In the opinion, as published in the official report of the case, it was not even assumed that there was corporate power to issue the bonds. The present case was submitted at the last term, and at a former day in this term a decision was announced reversing the judgment, but in the opinion reasons were assigned for the reversal different from those now given.** That judgment was afterwards, upon application for a rehearing, set aside and a reargument ordered. Upon further consideration of the whole case, we prefer to rest the decision on the ground that as between Cushman and the city the bonds in question were illegal and void, and as the present holder occupies no better position than Cushman, he and all those under whom he claims having bought with full knowledge of all the facts, the judgment should have been in favor of the city. The judgment of the circuit court is consequently again reversed and the cause remanded, with instructions to enter another judgment in favor of the city on the facts found.

106.US.542

Where a party sues out a writ of error to a State court, this court has no jurisdiction to re-examine the judgment or the decree, although it be adverse to the Federal right, if he set up and claimed the right, not for himself, but for a party in whose title he had no interest.

From this record it appears that one S. W. Miller, being insolvent, made an assignment of his property to M. J. Durham, trustee, for the benefit of his creditors. The trustee afterwards instituted a suit in the Boyle circuit court of Kentucky to enforce his trust. To this suit S. D. Miller and E. B. Miller, two of the present appellants, were parties; and in due course of proceeding a decree was entered for the sale of the assigned property. In this decree it appears that S. D. Miller and E. B. Miller, who were then in possession of part of the premises under a lease, were permitted to hold until the thirty-first of December, 1880, but it was added: 'Said S. D. Miller and Ed. B. Miller agree to give said trustee the full, entire, and peaceable possession of the house and lands they use and occupy, on or before the thirty-first day of December next, and on their failure so to do, the trustee, Durham, may have a writ of habere facias possessionam against each of them, and the clerk of this court is hereby directed to issue the same.' Under this decree the property now in question was sold and duly conveyed to the First National Bank of Danville. The Danville bank afterwards sold and conveyed the property to the National Bank of Lancaster, a bank organized under the national banking law. Title 62, Rev. St. After these conveyances were made a writ was applied for, under the decree, in behalf of the Lancaster bank, and issued to John Meyer, sheriff of the county, commanding him to take the possession of the property from S. D. Miller and E. B. Miller, and deliver it to Durham, the trustee. Thereupon, S. D. Miller, E. B. Miller, and John W. Miller, the last of whom had in some way got into the possession of the property after the decree, filed a petition in the Boyle circuit court against the Lancaster bank and the sheriff, to enjoin the execution of the writ, on the ground that it was issued without authority and was void. In this petition it was alleged that the Lancaster bank had no power under its charter to take and hold the property, and that consequently the deed to it was inoperative and void. There were also allegations of irregularity in the form of the writ, and that since the decree Durham, the trustee, had sold and conveyed the property to the Danville bank. To this petition the Lancaster bank filed an answer and counter-claim. In the counter-claim the bank set up its title through the sale under the decree. The prayer was that the petition of the plaintiffs be dismissed, and for a judgment for recovery of possession. Upon the hearing, the writ which had been issued was set aside for irregularity, but a new writ was awarded the bank. From a judgment to that effect an appeal was taken to the court of appeals of Kentucky, where the judgment was affirmed. To reverse this judgment of affirmance the present writ of error was brought. Our jurisdiction depends on the question whether the plaintiffs in error have been denied by the judgment below any 'title, right, privilege, or immunity specially set up or claimed' under the banking act. As early as 1809 it was held by this court in Owings v. Norwood's Lessee, 5 Cranch 344, that in order to give us jurisdiction in this class of cases the right, title, or immunity which is denied must grow out of the constitution, or a treaty, or statute of the United States relied on. Under this rule jurisdiction was not taken in that case, although it was an action of ejectment by Norwood's lessee, and the record showed that an effort was made to defeat the recovery because of an outstanding title in a third person adverse to Norwood and protected by a treaty. Chief Justice MARSHALL, in speaking for the court, said: 'Whenever a right grows out of or is protected by treaty, it is sanctioned against all the laws and judicial decisions of the states, and whoever may have this right is to be protected. But if the person's title is not affected by the treaty, or if he claims nothing under a treaty, his title cannot be protected by the treaty,' The principle thus announced has been recognized in many cases since. Montgomery v. Hernandez, 12 Wheat. 129; Henderson v. Tennessee, 10 How. 323; Wynn v. Morris, 20 How. 5; Hale v. Gaines, 22 How. 160; Verden v. Coleman, 1 Black, 472; Long v. Converse, 91 U. S. 105. Henderson v. Tennessee, like Owings v. Norwood's lessee, was an action of ejectment, and the effort was to defeat the recovery by showing an outstanding title in a third person under a treaty with which the party in possession did not connect himself; but the jurisdiction was denied, Chief Justice TANEY saying in the opinion: 'The right to make this defense is not derived from the treaties, not from any authority exercised under the general government. It is given by the laws of the state, which provide that the defendant in ejectment may set up title in a stranger in bar of the action. It is true, the title set up in this case was claimed under a treaty. But to give jurisdiction to this court the party must claim the right for himself, and not for a third person in whose title he has no interest.' 'The plaintiff in error must claim [for himself] some title, right, privilege, or exemption under an act of congress, etc., and the decision must be against his claim to give this court jurisdiction. Setting up a title in the United States by way of defense is not claiming a personal interest affecting the subject in litigation.' In our opinion these cases are conclusive of the present motion. The plaintiffs in error set up no title against the bank. In effect, they seek to prevent the issue of an execution on a judgment against them, or those under whom they claim, because, as between the Danville bank and the Lancaster bank, a conveyance made by the Danville bank of the property to be delivered under the execution is inoperative on account of the provisions of the banking law. What was done between the two banks had no effect on the title of the parties in possession, and it was a matter of no importance to them whether the execution issued on the application of the one or the other. Clearly, therefore, the plaintiffs in error occupy no other position than that of parties setting up title in the Danville bank by way of defense, and that is not claiming for themselves any title, right, privilege, or immunity given by the law. The motion to dismiss is granted. MILLER, J., took no part in the decision of this case.

108.US.277

The provisions in the act of June 80th, 1864,13 Stat. 284, ch. 173, g 122 ; and in the act of June 13th, 1866, 14 Stat. 139, ch. 184, § 9, that the profits of a railroad company carried to the account of any fund, or used for construction shall be subject to and pay a tax, do not apply to earnings by a railroad company which are used for construction or carried to a fund, unless, on a rest made and balance struck for the period for which the tax is demanded, the operations of the company show a profit. In this respect the rule in the statute differs from that which it lays down in respect to earnings used to pay interest or dividends, which were taxable whether there were actual profits or not. In'a suit to recover taxes alleged to be in arrear on the profits of a railroad company carried to a fund or expended in construction, the burden of proof is on the United States to show that the company earned such profits, and that losses shown by the company were not suffered during the period, When t~ie law is settled in the court above, but the findings show uncertainty as to the facts on which judgment is to be based, the cause should be re"mandedf or such further proceedings to be had in the inferior court as the justice of the ease may require.

This was a suit begun by the United States on the twenty-ninth of March, 1875, to recover of the Little Miami & Columbus & Xenia Railroad Company a tax of 5 per centum on alleged profits of the company 'carried to the account of any fund or used in construction,' provided for by the act of June 30, 1864, c. 173, § 122, (13 St. 284,) amended by the act of July 13, 1866, c. 184, (14 St. 139.) A jury was waived and the trial had by the court. The case comes here on a finding of facts. From this finding it appears 'that during the period covered by the petition, viz., from the first day of July, 1864, to the thirtieth day of November, 1869, inclusive, the defendant, in good faith, regularly made returns of earnings, profits, income, and gains, and of profits carried to the account of any fund, or used for construction, arising or accruing to it during said period, intended and believed by it to embrace all such profits, incomes, and gains, and all such profits carried to the account of any fund, or used for construction, which by law it was bound to return; which returns were received and accepted, and for the amount of which assessments from time to time were made of the taxes payable thereon, which taxes were regularly paid by it to the officer lawfully authorized by law to collect the same.' In addition to this it also appears 'that over and above the amount so returned, on which taxes were paid as aforesaid, the defendant did in fact make additional earnings, which by it were carried to the account of some fund, or used for constructon during said period, amounting in all to the sum of $168,707.22, on which no tax has been paid.' The finding also shows that during the year 1869 the defendant carried to the debit of profit and loss on its books various items, amounting in all to $184,395.06. In this way the books show no profits between July 1, 1864, and November 30, 1869, beyond the amount on which taxes were paid in the regular course of business. Of the sum so charged up, one item of $51,155.44 was for loss and depreciation on book-accounts and other choses in action, acquired by the company prior to July 1, 1864, and which had been standing on the books until 1869 at their par value; another item of $22,000 was for the depreciation in the value of bonds purchased after July 1, 1864; another item of $106,014.62 was for the depreciaton in value of what was known as the 'street-connection track;' and another item of $5,225 was for losses on a purchase in 1867 of shares of capital stock in a cotton-press company. Upon these facts, so found, the company claimed that, in ascertaining the amount of profits liable to taxation, there should be deducted from the earnings, during the period for which the tax was claimed, these several items of loss and depreciation; but the court ruled, as a matter of law, 'that for the purpose of taxation the defendant is not entitled by law to make the deduction as claimed,' and gave judgment for 5 per cent. on the whole sum of $168,707.22. In our opinion there was error in this ruling. The tax in question is not upon earnings 'carried to the account of any fund or used for construction,' but upon profits. Earnings used to pay interest or dividends are taxable, whether actual profits or not; but earnings used for construction, or carried to the account of a fund, are not to be taxed, unless they represent profits of the company in its business as a whole; that is to say, the excess of the aggregate of gains from all sources over the aggregate of losses. The law evidently contemplated an annual statement of accounts, and in this way an annual striking of balances between gains and losses. When, in such statements, it appeared that a part of the excess of gains over losses had been used for construction or added to some fund, then a tax was to be paid on what had been so used or appropriated. This was part of the system adopted for the taxation of the 'profits, income, or gains' of railroad corporations, which, as was said in Railroad Co. v. Collector, 100 U. S. 598, it was the object of this statute to provide. A tax was put on dividends, interest paid in the ordinary way, and profits used for construction or carried to some fund. This was a classification of the income of the corporation for the purposes of taxation. In the present case there has been no assessment of a tax, but the United States have sued to recover such sum as, upon an investigation of the accounts of the company, it shall appear ought to have been paid. The burden of proof is upon the government. No more can be recovered than is shown to be due. In presenting the evidence no attempt seems to have been made by the United States to state annual accounts and ascertain the amount to be paid on that basis. The court has found that between July 1, 1864, and November 30, 1869, earnings to the amount of $168,707.22 had been used for conconstruction or carried to the account of some fund; but it has also found that between the same dates the company lost $22,000 by depreciation in its investments in bonds, and $5,225 by depreciation in the stock of a cotton-press company. In the view we take of the law, these sums should have been deducted from the earnings as ascertained before fixing the amount of profits on which the tax was to be paid. It is not stated with certainty in the finding at what dates the losses actually occurred which are represented by the items of $51,155.44, depreciation in the value of book-accounts and choses in action, and $106,014.62, depreciation in the value of the street-connection track. For this reason we are unable to decide whether these losses, or any part of them, should be deducted. As the omission to make the finding sufficiently specific in this particular undoubtedly arose from the fact that the court ruled as a matter of law that no deductions could be made on account of losses of this character, we will remand the cause, so that further inquiry may be had on that point. This we have authority to do under section 701 of the Revised Statutes, which allows a cause to be remanded for 'such further proceedings to be had in the inferior court as the justice of the case may require.' The judgment of the circuit court is reversed and the cause remanded, with instructions to deduct from the amount of earnings, as ascertained upon the former trial, the items of $22,000, depreciation in the value of bonds, and $5,225, depreciation in the value of cottonpress stock, together with such other sums included in the items of $51,155.44, depreciation in book-accounts and choses in action, and $106,014.62, depreciation in value of the street-connection track, as, upon further hearing, shall be found to represent losses accruing to the company between July 1, 1864, and November 30, 1869, and to render judgment only for such an amount of tax as shall appear to be due upon that basis.

106.US.622

Where, in a case tried by the court below, the record does not affirmatively show a written stipulation waiving a jury, the questions decided at the trial cannot be re-examined here on a writ of error.

This is a case tried and determined by the court without the intervention of a jury. The record does not show any stipulation in writing waiving a jury. The errors assigned all relate to rulings of the court on the trial, excepted to at the time and presented by bill of exceptions. The rule is well settled that if a written stipulation waiving a jury is not in some way shown affirmatively in the record, none of the questions decided at the trial can be re-examined here on writ of error. Kearney v. Case, 12 Wall. 283; Gilman v. Illinois & Mississippi Tel. Co. 91 U. S. 614; Boogher v. New York Life Ins. Co. 103 U. S. 96; Hodges v. Easton, 1 SUP. CT. REP. 307. For this reason, and without passing on any of the questions presented by the assignment of errors, we affirm the judgment.

107.US.655

1. The counts of an indictment against the president of a national banking association for making such a false entry on its books as is punishable under sect. 6209 of the Revised Statutes are sufficient if they are in the form hereinafter set forth, post, p. 656, as the offence is thereby alleged in apt terms, and with the requisite averments of time and place. 2. The counts which charge his fraudulent purchase of shares of the capital stock of the association are bad if they either fail to state for whose use the purchase was made, or if they state that it was made for thd use of the association, or if they do not aver that it was not made in order to prevent loss on some previously contracted debt. 3. The counts which charge him with having wilfully misapplied the funds of the association should aver that he did so for the benefit of himself or some person or body other than the association, and with intent to injure or defraud the association or some other person or body corporate. 4. The counts which charge his fraudulent purchase of the shares of stock, and allege that they were by him held "in trust for the use of said association, and that said shares were not purchased as aforesaid in order to prevent loss upon any debts theretofore contracted with said association in good faith," do not allege with sufficient certainty an offence under said sect. 5209. 5. The purchase of stock in violation of sect. 6201, if made with intent to defraud, and by one or more of the officers of the bank named in said sect. 5209, is not a crime punishable under the latter section.

In passing upon the questions certified to us by the circuit court, it will be convenient to follow the order in which they have been argued by counsel, rather than that in which the questions are presented by the certificate of division. The section of the Revised Statutes upon which the indictment is based, creates and describes certain offenses, and expressly denominates them misdemeanors. In the case of U. S. v. Mills, 7 Pet. 138, it was said by this court that 'the general rule is that in indictments for misdemeanors created by statute, it is sufficient to charge the offense in the words of the statute. There is not that technical nicety required as to form which seems to have been adopted and sanctioned by long practice in cases of felony and with respect to some crimes where particular words must be used, and no other words, however synonymous they may seem, can be substituted. But in all cases the offense must be set forth with clearness, and all necessary certainty to apprise the accused of the crime with which he stands charged.' In the case of U. S. v. Simmons, 96 U. S. 362, it was said by this court, speaking by Mr. Justice HARLAN, that 'when an offense is plainly statutory, it is, 'as a general rule, sufficient in the indictment to charge the defendant with acts coming within the statutory description in the substantial words of the statute, without any further expansion of the matter;' but to this rule there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised in the indictment with reasonable certainty of the nature of the accusation against him, to the end that he may prepare his defense and plead the judgment as a bar to any subsequent prosecution against him.' So in the case of U. S. v. Carll, 105 U. S. 611, it was said by Mr. Justice GRAY, speaking for the court, that 'in an indictment upon a statute it is not sufficient to set forth the offense in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished; and the fact that the statute in question, read in the light of the common law and of other statutes in the like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that intent.' In the case of U. S. v. Pond, 2 Curt. 265, the rule was thus stated by Mr. Justice CURTIS: 'It must be remembered that this is an indictment for a misdemeanor created by the statute, and that in general it is sufficient to describe such an offense in the words of the statute, * * * unless they embrace cases which it was not the intention of the legislature to include within the law. If they do, the indictment should show that this is not one of the cases thus excluded.' Applying the rules thus laid down to the counts of the indictment, we are to consider whether they sufficiently state an offense under section 5209 of the Revised Statutes. To describe the offense charged in the first 36 counts of the indictment, section 5209 requires the following averments: (1) That the accused was the president or other officer of a national banking association, which was carrying on a banking business. (2) That being such president or other officer, he made in a book, report, or statement of the association, describing it, a false entry, describing it. (3) That such false entry was made with intent to injure or defraud the association, or to deceive any agent, describing him, appointed to examine the affairs of the association. (4) Averments of time and place. An examination of the counts under consideration shows that they contain all these averments pleaded with clearness and reasonable certainty. They must, therefore, be held sufficient, unless some of the objections made to them by counsel for defendant are well taken. It is urged that these counts are defective because they do not contain an averment that the false entry was made 'in an account of, and in the due course of, business of the bank.' Neither of these averments is required by the statute. It is alleged that the false entry was made in a book belonging to and in use by the association in transacting its banking business, and known and designated as 'Profit and Loss, No. 6.' To hold this insufficient would carry refinement in criminal pleading to an impracticable extent. The counts point out to the defendant and the court, with certainty and precision, the book used by the association in which the false entry was made, and this is all that is necessary under the statute. It is next objected that the false entries as set out in the counts do not of themselves have any significance, and are unintelligible without explanation. This is mere assumption. Conceding that the entries may be unintelligible to persons not skilled as accountants, it does not follow that they are so to the agent appointed by the comptroller, who, it is alleged, was the person whom the entries were intended to deceive. But, if the entries needed explanation, it was perfectly competent for the pleader to explain them by innuendo. Rex v. Gripe, 1 Ld. Raym. 256; Rex v. Aylett, 1 Term R. 63; Rex v. Taylor, 1 Camp. 404; Reg. v. Virrier, 12 Adol. & E. 317; Mix v. Woodward, 12 Conn. 262; Van Vechten v. Hopkins, 5 Johns. 211. This he has done by averring what the entries purported to show, and did in substance indicate and declare. Having explained the entries, he avers them to be false. To hold this insufficient would be to decide that the making of false entries in the books of a banking association, in the usual method of book-keeping, and which were intelligible to all accountants, could not be punished under the statute because not intelligible to persons generally, or to persons not skilled in book-keeping. It is next objected that the counts under consideration are argumentative and repugnant, because they do not allege that interest was due to the association from the individuals named in the alleged false entries. This objection is not well founded. Whether interest was due or not is quite immaterial. The charge is that a false entry was made on the books of the association which purported that a certain sum was, on a day named, received from a person named, on account of interest then and there due from him to the association; that the said sum was not then and there received on account of interest due, and was not received on any account from any sources whatever. The falsity of the entry does not consist in the fact that there was no interest due from the person named, but in the fact that money, which the entries declared had been received from him on account of interest due, had not been received from him on that or any other account. It was, therefore, entirely unnecessary to aver that no such interest was due, and the want of such averment does not render the counts argumentative or repugnant. It is further objected to these counts that a false entry to the credit of profit and loss alone could not deceive a bank examiner, and therefore that the counts are repugnant. This is also mere assumption. But if the false entry is calculated to deceive, the making of it in the books of the association, with intent to deceive, is all that is necessary to bring the act within the meaning of the statute. It is perfectly apparent that any false entry in any account book of a bank used in transacting its banking business is calculated to deceive. The fact that its falsity may be exposed by an examination of other books of account, does not render it any the less a false entry made with intent to deceive. The circumstance that the attempt to deceive by making a false entry was not an adroit and skillful one, does not relieve the act of its criminal character. It is further contended that the counts under consideration are insufficient, because it is not alleged that at the time the false entries were made an agent had been appointed to examine the affairs of the association. This objection is based on the theory that the statute was designed to punish only those officers of a banking association who made false entries in its books with intent to deceive examiners appointed before the false entries were made. We do not think the statute will bear this construction. The appointment of agents to examine the affairs of national banking associations is provided for by section 5240 of the Revised Statutes, which declares: 'The comptroller of the currency, with the approval of the secretary of the treasury, shall, as often as shall be deemed necessary or proper, appoint a suitable person or persons to make an examination of the affairs of every banking association, who shall have power to make a thorough examination into all the affairs of the association.' It appears from this section that the appointment of these agents is not permanent, but occasional and temporary, and that the appointments are made as often as shall be deemed necessary and proper. It is, therefore, apparent that the statute which punishes false entries, made with intent to deceive such agents, refers to any entries made with that intent, whether before or after the appointment of the agent. There is nothing impossible in the averment that false entries have been made with intent to deceive an agent to be appointed after they are made. The agents are often purposely appointed without notice to the association. The fact that the comptroller of the currency has information that the officers of an association are making false entries in its books may be the occasion for appointing an agent to examine its affairs. To hold that the officers of the association would only be punishable for false entries made after an agent had been appointed, would rob the law of a large part of its salutary effect. Its purpose is clear to punish all false entries in the books of the bank, no matter when made, if made with intent to defraud the association or deceive the examiner. We think that in respect to the point under consideration the indictment is sufficient. We are of opinion that none of the objections raised to the first 35 counts are well taken. They are refined and unsubstantial, and not sustained by the rules of criminal pleading in cases of misdemeanor, or by the fair construction of the statute on which the indictment is based. These counts embody the language of the statute; they charge every element of the offense created by the statute with sufficient certainty, and give the defendant clear notice of the charge he is called on to defend. They are, therefore, sufficient. U. S. v. Cook, 17 Wall. 168, and cases already cited. The thirty-sixth count differs from the first 35 in charging the intent with which the offense was committed. The intent is charged to be 'to injure and defraud the said association, and certain persons to the grand jurors unknown.' This follows the language of the statute. Clearly it is possible to injure and defraud the association or its stockholders or other persons by false entries in its account of profit and loss. The charge is not repugnant or impossible. We are of opinion, therefore, that the first 36 counts of the indictment, being those which charge false entries in the books of the association, sufficiently state an offense under section 5209. It follows that count 117, which is in all respects similar to count 1, and count 118, which is in all respects similar to count 36, are good and sufficient. We shall next consider count numbered 77 and the similar counts. That portion of the section on which they are based makes it an offense for the president or other officer of a banking association to embezzle, abstract, or willfully misapply the moneys of the association with intent to injure or defraud the association, or any company or person. The seventy-seventh count of the indictment charged that the defendant being president of the association, paid to a certain person unknown the sum of $2,400 of the moneys of the association in the purchase of 40 shares of its capital stock, which stock, so purchased, was held by the defendant in trust for the use of the association, and the same was not purchased to prevent loss on any debt theretofore contracted with the association in good faith, and that so the defendant did willfully misapply the moneys of the association with intent to injure and defraud the association and certain persons to the grand jurors unknown. The question is propounded to us whether this count sufficiently describes an offense under section 5209 of the Revised Statutes. The purchase of its own stock by the association, except to secure a debt due it, is forbidden by law. Is a purchase for the use of a banking association of its own stock by its president, when not necessary to secure a debt due the association, a willful misapplication of its funds, punishable by section 5209? We think the willful misapplication made an offense by this statute means a misapplication for the use, benefit, or gain of the party charged, or of some company or person other than the association. Therefore, to constitute the offense of willful misapplication, there must be a conversion to his own use or the use of some one else of the moneys and funds of the association by the party charged. This essential element of the offense is not averred in the counts under consideration, but is negatived by the averment that the shares purchased by the defendant was held by him in trust for the use of the association, and there is no averment of a conversion by the defendant to his own use or the use of any other person of the funds used in the purchase of the shares. The counts, therefore, charge maladministration of the affairs of the bank, rather than criminal misapplication of its funds. If we hold these counts to be good, then every official act of any officer, clerk, or agent of a banking association, by which its funds are applied in a way not authorized by law, would be punishable under section 5209. For instance, section 5200 of the Revised Statutes declares that 'the total liabilities to any association of any person, * * * for money borrowed, * * * shall at no time exceed one-tenth part of the capital stock of the association actually paid in.' Section 5201 provides that no association shall make any loan or discount on the security of the shares of its own capital stock, unless such security shall be necessary to prevent loss on a previously-contracted debt. If the counts under consideration are sustained, then every president, director, cashier, teller, clerk, or agent of a banking association, who has any part in lending the money of the association contrary to the provisions of these sections, is guilty of a criminal misapplication of its funds. So, by section 5137 of the Revised Statutes, the purposes for which a banking association may purchase and hold real estate are limited, and specifically pointed out. If the directors of a banking association should authorize the purchase of a piece of real estate for its use, but not for purposes authorized by the statute, even though with intent to injure some corporate body or natural person, it could hardly be claimed that the directors who made the order, and the other officers or agents of the association who, with a like intent, had any hand in making the purchase or in paying out the money of the bank therefor, would be liable to indictment and imprisonment under section 5209. The act charged by the counts under consideration are precisely of the same character as those just mentioned. They are acts of maladministration of the affairs of the association by its officers. The penalty for such acts is prescribed by section 5239, which declares: 'If the directors of any national banking association shall knowingly violate, or knowingly permit any of the officers, agents, or servants of the association to violate, any of the provisions of this title, ['National Banks,'] all the rights, privileges, and franchises of the association shall be hereby forfeited. * * * And in case of such violation, every director who participated in or assented to the same shall be held liable in his personal and individual capacity for all damages which the association, its shareholders, or any other person shall have sustained in consequence of such violation.' We are, therefore, of opinion that the willful misapplication of the moneys and funds of the banking association, which is made an offense by section 5209, means something different from the acts of official maladministration referred to in section 5239, and it must be a willful misapplication for the use or benefit of the party charged, or of some person or company other than the association, with intent to injure and defraud the association or some other body corporate, or some natural person. As the counts under consideration, namely, count 77, and the similar counts down to and including count 96, do not show that the willful misapplication therein alleged was made by the defendant for his own use, benefit, or advantage, but for the use of the association, we are of opinion that they do not allege an offense under section 5209, and are, therefore, insufficient and bad. The counts are, in our opinion, bad also for repugnancy. They aver that the defendant purchased the shares of the association and held them in trust for the association. This charge, without further averments, is clearly repugnant. It is true that it is possible for an officer of a banking association, with intent to defraud it, to misappropriate its funds in the purchase for its use of its own stock. But the count which avers such an act should also make other averments to show that the application was not merely a use of the money for the benefit of the association forbidden by law, but a criminal misapplication, by which it was possible that the association could be defrauded. For the reasons assigned, the counts next following, numbered from 97 to 116, inclusive, which are similar to count 77, except that they severally fail to aver that the act therein charged was done with intent to injure and defraud, must be held to be insufficient. The counts last mentioned, as well as the counts numbered from 56 to 76, inclusive, are bad for the further reason that they fail to aver any intent to injure and defraud mentioned in section 5209. The intent to injure and defraud is an essential ingredient to every offense specified in the section, and the failure to aver the intent is a fatal defect in the counts in which it occurs. We shall next consider court numbered 37 and the counts which are similar to it. These counts simply charge that the defendant, being president of the association, willfully misapplied its moneys and funds by buying therewith certain shares of its stock, with intent to injure and defraud the association and certain persons to the grand jurors unknown. The words 'willfully misapplied' are, so far as we know, new in statutes creating offenses, and they are not used in describing any offense at common law. They have no settled technical meaning like the word 'embezzle,' as used in the statutes, or the words 'steal, take, and carry away,' as used at common law. They do not, therefore, of themselves fully and clearly set forth every element of the offense charged. It would not be sufficient simply to aver that the defendant 'willfully misapplied' the funds of the association. This is well settled by the authorities we have already cited. There must be averments to show how the application was made and that it was an unlawful one. These averments the pleader has in these counts attempted to make by charging that the defendant paid out the funds of the association in the purchase of its own stock. But this is not necessarily an unlawful use of the funds of the association. It is not every purchase of its own shares by an association that is forbidden. The very section (5201) and sentence of the statute which declares that no banking association shall be a purchaser of its own shares, contains the exception 'unless such purchase shall be necessary to prevent loss upon a debt previously contracted in good faith.' This exception should have been negatived in these counts. The rule of pleading, as laid down by Mr. Chitty, is that 'when a statute contains provisos and exceptions in distinct clauses it is not necessary to state in the indictment that the defendant does not come within the exceptions, or to negative the provisos it contains. On the contrary, if the exceptions themselves are stated in the enacting clause it will be necessary to negative them in order that the description of the crime may in all respects correspond with the statute.' 1 Chit. Crim. Law, 283, 284. Thus, where a statute declared that if one on the Sabbath day 'shall exercise any secular labor, business, or employment, except such only as works of necessity and charity, he shall be punished,' etc., a negative of the exception was held indispensable. State v. Barker, 18 Vt. 195. See, also, Com. v. Maxwell, 2 Pick. 139; 1 East, 167; Spieres v. Parker, 1 Term R. 141; Gill v. Scrivens, 7 Term R. 27; 1 Bish. Crim. Proc. § 636. The failure of the counts under consideration to aver that the purchase of the shares of the association was not necessary to prevent loss upon a debt previously contracted in good faith is a fatal defect. These counts merely charge that the defendant willfully misapplied the funds of the association, and then aver a use of the funds, which, from all that appears to the contrary, was a perfectly-lawful application of them. The result is that no offense is described in the counts numbered fron 37 to 56, inclusive, and that they are, therefore, insufficient and bad. It also follows that counts numbered fron 57 to 76, inclusive, which are similar to the series just mentioned, except that they contain no charge of intent to injure and defraud, are also bad. What we have said disposes of all the questions propounded to us which it is necessary that we should answer. We answer the first, second, seventh, and ninth questions in the affirmative, and the fifth, sixth, and eighth questions in the negative. From these answers it appears that all the counts from the thirty-seventh to the one hundred and eighteenth, inclusive, are insufficient and bad. We therefore decline to answer the third and fourth questions, which relate to the same counts. U.S. v. Buzzo, 18 Wall. 125.

107.US.678

1. The Chicago River and its branches, although lying within the limits of the State of fllinois, are navigable waters of the United States over which Congress, in the exercise of its power under the commerce clause of the Constitution, may exercise control to the extent necessary to protect, preserve, and improve their free navigation; but until that body acts, the State has plenary authority over bridges across them, and may. vest in Chicago jurisdiction over the construction, repair, and use of those bridges within the city. 2. There is nothing in the ordinance of July 13,1787, or in the subsequent legislation of Congress, that precludes the State from exercising that authority.

The Escanaba & Lake Michigan Transportation Company, a corporation created under the laws of Michigan, is the owner of three steam-vessels engaged in the carrying trade between ports and places in different states on Lake Michigan and the navigable waters connecting with it. The vessels are enrolled and licensed for the coasting trade, and are principally employed in carrying iron ore from the port of Escanaba, in Michigan, to the docks of the Union Iron & Steel Company on the south fork of the south branch of the Chicago river, in the city of Chicago. In their course up the river and its south branch and fork to the docks, they are required to pass through draws of several bridges constructed over the stream by the city of Chicago, and it is of obstructions caused by the closing of the draws, under an ordinance of the city, for a designated hour of the morning and evening during week-days, and by a limitation of the time to 10 minutes during which a draw may be left open for the passage of a vessel, and by some of the piers in the south branch and fork, and the bridges resting on them, that the corporation complains; and to enjoin the city from closing the draws for the morning and evening hours designated, and enforcing the 10 minutes limitation, and to compel the removal of the objectionable piers and bridges, the present bill is filed. The river and its branches are entirely within the state of Illinois, and all of it, and nearly all of both branches that is navigable, are within the limits of the city of Chicago. The river, from the junction of its two branches to the lake, is about three-fourths of a mile in length. The branches flow in opposite directions and meet at its head, nearly at right angles with it. Originally the width of the river and its branches seldom exceeded 150 feet; of the branches and fork it was often less than 100 feet; but it has been greatly enlarged by the city for the convenience of its commerce. The city fronts on Lake Michigan, and the mouth of the Chicago river is near its center. The river and its branches divide the city into three sections: one lying north of the main river and east of its north branch, which may be called its northern division; one lying between the north and south branches, which may be called its western division; and one lying south of the main river and east of the south branch, which may be called its southern division. Along the river and its branches the city has grown up into magnificent propertions, having a population of 600,000 souls. Running back from them on both sides are avenues and streets lined with blocks of edifices, public and private, with stores and warehouses, and the immense variety of buildings suited for the residence and the business of this vast population. These avenues and streets are connected by a great number of bridges, over which there is a constant passage of foot passengers and of vehicles of all kinds. A slight impediment to the movement causes the stoppage of a crowd of passengers and a long line of vehicles. The main business of the city, where the principal stores, warehouses, offices, and public buildings are situated, is in the southern division of the city; and a large number of the persons who do business there reside in the northern or the western division, or in the suburbs. While this is the condition of business in the city on the land, the river and its branches are crowded with vessels of all kinds, sailing craft and steamers, boats, barges, and tugs, moving backwards and forwards, and loading and unloading. Along the banks there are docks, warehouses, elevators, and all the appliances for shipping and reshipping goods. To these vessels the unrestricted navigation of the river and its branches is of the utmost importance; while to those who are compelled to cross the river and its branches the bridges are a necessity. The object of wise legislation is to give facilities to both, with the least obstruction to either. This the city of Chicago has endeavored to do. The state of Illinois, within which, as already mentioned, the river and its branches lie, has vested in the authorities of the city jurisdiction over bridges within its limits, their construction, repair, and use, and empowered them to deepen, widen, and change the channel of the stream, and to make regulations in regard to the times at which the bridges shall be kept open for the passage of vessels. Acting upon the power thus conferred, the authorities have endeavored to meet the wants of commerce with other states and the necessities of the population of the city residing or doing business in different sections. For this purpose they have prescribed as follows: That 'between the hours of 6 and 7 o'clock in the morning, and half past 5 and half past 6 o'clock in the evening, Sundays excepted, it shall be unlawful to open any bridge within the city of Chicago;' and that 'during the hours between 7 o'clock in the morning and half past 5 o'clock in the evening, it shall be unlawful to keep open any bridge within the city of Chicago for the purpose of permitting vessels or other crafts to pass through the same, for a longer period at any one time than 10 minutes, at the expiration of which period it shall be the duty of the bridge-tender or other person in charge of the bridge to display the proper signal, and immediately close the same, and keep it closed for fully 10 minutes for such persons, teams, or vehicles as may be waiting to pass over, if so much time shall be required; when the said bridge shall again be opened (if necessary for vessels to pass) for a like period, and so on alternately (if necessary) during the hours last aforesaid; and in every instance where any such bridge shall be open for the passage of any vessel, vessels, or other craft, and closed before the expiration of 10 minutes from the time of opening, said bridge shall then, in every such case, remain closed for fully 10 minutes, if necessary, in order to allow all persons, teams, and vehicles in waiting to pass over said bridge.' The first of these requirements was called for to accommodate clerks, apprentices, and laboring men seeking to cross the bridges, at the hours named, in going to and returning from their places of labor. Any unusual delay in the morning would derange their business for the day, and subject them to a corresponding loss of wages. At the hours specified there is three times, so the record shows, the usual number of pedestrians going and returning that there is during other hours of the day. The limitation of 10 minutes for the passage of the draws by vessels seem to have been eminently wise and proper for the protection of the interests of all parties. Ten minutes is ample time for any vessel to pass the draw of a bridge, and the allowance of more time would subject foot-passengers, teams, and other vehicles to great inconvenience and delays. It is to this 10 minutes limitation, and to the assignment of the morning and evening hour to pedestrians and vehicles, that the complainant principally objects. He insists that the navigation of the river and its branches should not be thus delayed; that the rights of commerce by vessels are paramount to the rights of commerce by any other way. But in this view the complainant is in error. The rights of each class are to be enjoyed without invasion of the equal rights of others. Some concession must be made on every side for the convenience and the harmonious pursuits of different occupations. Independently of any constitutional restrictions, nothing would seem more just and reasonable, or better designed to meet the wants of the population of an immense city, consistently with the interests of commerce, than the 10 minutes rule, and the assignment of the morning and evening hours which the city ordinance has prescribed. The power vested in the general government to regulate interstate and foreign commerce involves the control of the waters of the United States which are navigable in fact, so far as it may be necessary to insure their free navigation, when by themselves or their connection with other waters they form a continuous channel for commerce among the states or with foreign countries. The Daniel Ball, 10 Wall. 557. Such is the case with the Chicago river and its branches. The common-law test of the navigability of waters, that they are subject to the ebb and flow of the tide, grew out of the fact that in England there are no waters navigable in fact, or to any great extent, which are not also affected by the tide. That test has long since been discarded in this country. Vessels larger than any which existed in England when that test was established, now navigate rivers and inland lakes for more than a thousand miles beyond the reach of any tide. That test only becomes important when considering the rights of riparian owners to the bed of the stream, as in some states it governs in that matter. The Chicago river and its branches must, therefore, be deemed navigable waters of the United States, over which congress, under its commercial power, may exercise control to the extent necessary to protect, preserve, and improve their free navigation. But the states have full power to regulate within their limits matters of internal police, including in that general designation whatever will promote the peace, comfort, convenience, and prosperity of their people. This power embraces the construction of roads, canals, and bridges, and the establishment of ferries, and it can generally be exercised more wisely by the states than by a distant authority. They are the first to see the importance of such means of internal communication, and are more deeply concerned than others in their wise management. Illinois is more immediately affected by the bridges over the Chicago river and its branches than any other state, and is more directly concerned for the prosperity of the city of Chicago, for the convenience and comfort of its inhabitants, and the growth of its commerce. And nowhere could the power to control the bridges in that city, their construction, form, and strength, and the size of their draws, and the manner and times of using them, be better vested than with the state, or the authorities of the city upon whom it has devolved that duty. When its power is exercised so as to unneces, sarily obstruct the navigation of the river or its branches, congress may interfere and remove the obstruction. If the power of the state and that of the federal government come in conflict, the latter must control and the former yield. This necessarily follows from the position given by the constitution to legislation in pursuance of it, as the supreme law of the land. But until congress acts on the subject, the power of the state over bridges across its navigable streams is plenary. This doctrine has been recognized from the earliest period, and approved in repeated cases, the most notable of which are Wilson v. Blackbird Creek Co. 2 Pet. 245, which was decided in 1829, and Gilman v. City of Philadelphia, 3 Wall. 713, which was decided in 1865. In the first of these cases, an act of Delaware incorporated the Blackbird Creek Company, and authorized it to construct a dam over one of the small navigable rivers of the state, which obstructed the navigation of the stream. A sloop, licensed and enrolled according to the navigation laws of the United States, broke and injured the dam, and thereupon an action was brought for damages by the company. The owners of the sloop set up that the river was a public and common navigable creek 'in the nature of a highway,' in which the tides had always flowed and reflowed, and in which there was and of right ought to be a common and public way for all the citizens of the state of Delaware and of the United States, with sloops and other vessels to navigate at all times of the year at their free will and pleasure; that the company had wrongfull erected the dam across the navigable creek and thereby obstructed the same; and that they had broken the dam in order to pass along the creek with their sloop. To this plea the company demurred, and the demurrer was sustained by the court of appeals of Delaware and by this court. The decision here was based entirely upon the absence of any legislation of congress upon the subject. Said Chief Justice MARSHALL, speaking for the court: 'The measure authorized by this act (of Delaware) stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgment, unless it comes in conflict with the constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court can take no cognizance. The counsel for the complainants in error insist that it comes in conflict with the power of the United States to regulate commerce with foreign nations and among the several states. If congress had passed any act in execution of the power to regulate commerce, the object of which was to control state legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern states, we should not feel much difficulty in saying that a state law, coming in contact with such act, would be void. But congress has passed no such act. The repugnancy of the law of the Delaware with the constitution is placed entirely upon its repugnancy with the power of congress to regulate commerce with foreign nations and among the several states,—a power which has not been so exercised as to affect the question.' The second case mentioned, that of Gilman v. City of Philadelphia, is equally emphatic and decisive. The complaint there was by a citizen of New Hampshire, who owned valuable coal wharves on the Schuylkill river at Philadelphia, just above Chestnut street, in that city. In 1857 the legislature of the state authorized the city of Philadelphia to erect a permanent bridge over the river at that street. The city being about to begin the structure, which was to be without a draw, Gilman filed a bill to prevent its erection, alleging that it would be an unlawful obstruction of the navigation of the river, and an illegal interference with his rights, and a public nuisance, producing to him special damage, and that it was not competent for the legislature of Pennsylvania to sanction such a structure; and he claimed that he was entitled to be protected by an injunction to stay the progress of the work, and to a decree of abatement, if it should be proceeded with to completion. It appeared that the river was tide-water, and navigable to the wharves of the complainant for vessels drawing from 18 to 20 feet of water, and that for many years commerce to them had been carried on in all kinds of vessels. The bridge, which was to be constructed below them, was to be only 30 feet high; hence would not permit the passage of vessels with masts. The city justified its proposed action by the act of the legislature, alleging that the bridge was a necessity for public convenience, a large population residing on both sides of the river. The circuit court dismissed the bill, and this court affirmed the decree, holding that as the river was wholly within her limits, the state had not exceeded the bounds of her authority, and that until the dormant power of the constitution was awakened and made effective by appropriate legislation, the reserved power of the state was plenary, and its exercise in good faith could not be made the subject of review by the court. In its opinion, after observing 'that it must not be forgotten that bridges, which are connecting parts of turnpikes, streets, and railroads, are means of commercial transportation as well as navigable waters, and that the commerce which passed over a bridge may be much greater than would ever be transported on the water obstructed,' the court said, speaking by Mr. Justice SWAYNE: 'It is for the municipal power to weigh the considerations which belong to the subject and to decide which shall be preferred, and how far either shall be made subservient to the other. The states have always exercised this power, and, from the nature and objects of the two systems of government, they must always continue to exercise it, subject, however, in all cases, to the paramount authority of congress, whenever the power of the state shall be exerted within the sphere of the commercial power which belongs to the nation.' 3 Wall. 729. These decisions have been cited, approved, and followed in many cases, notably in that of Pound v. Turck, decided in 1877. 95 U. S. 459. There, a statute of Wisconsin authorized the erection of one or more dams across the Chippewa river, which was a small navigable stream lying wholly within the limits of the state, but emptying its waters into the Mississippi; and also the building and maintaining of booms on the river with sufficient piers to stop and hold floating logs. The dams and booms were to be so built as not to obstruct the running of lumber-rafts on the river. Certain parties were damaged by delay in a lumber-raft and from its breaking, caused by the obstructions in the river, and their assignees in bankruptcy brought an action against those who had placed the obstructions there and recovered. The case being brought here, this court was of opinion that the somewhat confused instructions of the circuit court must have led the jury to understand that if the structures of the defendant were a material obstruction to the general navigation of the river, the statute of the state afforded no defense, although the structures were built in strict conformity with its provisions. The circuit court evidently acted upon the theory that the state possessed no power to pass the statute because of its supposed conflict with the commercial power of congress. This court, thus construing the instructions of that court, held that they were erroneous; that the case was within the decisions of the Blackbird Creek Case Gilman v. City of Philadelphia, and that it was competent for the legislature of the state to impose such regulations and limitations upon the erection of obstructions like dams and booms in navigable streams wholly within its limits, as might best accommodate the interests of all concerned, until congress should interfere and by appropriate legislation control the matter. The doctrine declared in these several decisions is in accordance with the more general doctrine now firmly established, that the commercial power of congress is exclusive of state authority only when the subjects upon which it is exercised are national in their character, and admit and require uniformity of regulation affecting alike all the states. Upon such subjects only that authority can act which can speak for the whole country. Its non-action is, therefore, a declaration that they shall remain free from all regulation. Welton v. State, 91 U. S. 275; Henderson v. Mayor of New York, 92 U. S. 259; County of Mobile v. Kimball, 102 U. S. 691. On the other hand, where the subjects on which the power may be exercised are local in their nature or operation, or constitute mere aids to commerce, the authority of the state may be exerted for their regulation and management until congress interferes and supersedes it. As said in the County of Mobile v. Kimball: 'The uniformity of commercial regulations, which the grant to congress was designed to secure against conflicting state provisions, was necessarily intended only for cases where such uniformity is practicable. Where, from the nature of the subject or the sphere of its operation, the case is local and limited, special regulations, adapted to the immediate locality, could only have been contemplated. State action upon such subjects can constitute no interference with the commercial power of congress, for when that acts the state authority is superseded. Inaction of congress upon these subjects of a local nature or operation, unlike its inaction upon matters affecting all the states and requiring uniformity of regulation, is not to be taken as a declaration that nothing shall be done in respect to them, but is rather to be deemed a declaration that for the time being and until it sees fit to act they may be regulated by state authority.' 102 U.S. 699. Bridges over navigable streams, which are entirely within the limits of a state, are of the latter class. The local authority can better appreciate their necessity, and can better direct the manner in which they shall be used and regulated, than a government at a distance. It is, therefore, a matter of good sense and practical wisdom to leave their control and management with the states, congress having the power at all times to interfere and supersede their authority whenever they act arbitrarily and to the injury of commerce. It is, however, contended here that congress has interfered, and by its legislation expressed its opinion as to the navigation of Chicago river and its branches; that it has done so by acts recognizing the ordinance of 1787, and by appropriations for the improvement of the harbor of Chicago. The ordinance of 1787, for the government of the territory of the United States north-west of the Ohio river, contained in its fourth article a clause declaring that 'the navigable waters leadings into the Mississippi and St. Lawrence, and the carrying places between them, shall be common highways and forever free, as well to the inhabitants of the said territory as to the citizens of the United States and those of any other states that may be admitted into the confederacy, without any tax, impost, or duty therefor.' The ordinance was passed July 13, 1787, one year and nearly eight months before the constitution took effect; and although it appears to have been treated afterwards as in force in the territory, except as modified by congress; and by the act of May 7, 1800, creating the territory of Indiana, and by the act of February 3, 1809, creating the territory of Illinois, the rights and privileges granted by the ordinance are expressly secured to the inhabitants of those territories; and although the act of April 18, 1818, enabling the people of Illinois territory to form a constitution and state government, and the act of August 26th, following, admitting the state into the Union, refer to the principles of the ordinance according to which the constition was to be formed,—its provisions could not control the authority and powers of the state after her admission. Whatever the limitation upon her powers as a government while in a territorial condition, whether from the ordinance of 1787 or the legislation of congress, it ceased to have any operative force, except as voluntarily adopted by her after she became a state of the Union. On her admission she at once became entitled to and possessed of all the rights of dominion and sovereignty which belonged to the original states. She was admitted, and could be admitted, only on the same footing with them. The language of the act of admission is, 'on an equal footing with the original states in all respects whatever.' 3 St. 536. Equality of constitutional right and power is the condition of all the states of the Union, old and new. Illinois, therefore, as was well observed by counsel, could afterwards exercise the same power over rivers within her limits that Delaware exercised over Blackbird creek, and Pennsylvania over the Schuylkill river. Pollard's Lessee v. Hagan, 3 How. 212; Permoli v. First Municipality, 3 How. 589; Strader v. Graham, 10 How. 82. But, aside from these considerations, we do not see that the clause of the ordinance upon which reliance is placed materially affects the question before us. That clause contains two provisions: one, that the navigable waters leading into the Mississippi and the St. Lawrence shall be common highways to the inhabitants; and the other, that they shall be forever free to them, without any tax, impost, or duty therefor. The navigation of the Illinois river is free, so far as we are informed, from any tax, impost, or duty, and its character as a common highway is not affected by the fact that it is crossed by bridges. All highways, whether by land or water, are subject to such crossings as the public necessities and convenience may require, and their character as such is not changed, if the crossings are allowed under reasonable conditions, and not so as to needlessly obstruct the use of the highways. In the sense in which the terms are used by publicists and statesmen, free navigation is consistent with ferries and bridges across a river for the transit of persons and merchandise as the necessities and convenience of the community may require. In Palmer v. Com'rs of Cuyahoga Co. we have a case in point. There application was made to the circuit court of the United States in Ohio for an injunction to restrain the erection of a draw-bridge over a river in that state on the ground that it would obstruct the navigation of the stream and injure the property of the plaintiff. The application was founded on the provision of the fourth article of the ordinance mentioned. The court, which was presided over by Mr. Justice McLEAN, then having a seat on this bench, refused the injunction, observing that—— 'This provision does not prevent a state from improving the navigableness of these waters, by removing obstructions, or by dams and locks, so increasing the depth of the water as to extend the line of navigation. Nor does the ordinance prohibit the construction of any work on the river which the state may consider important to commercial intercourse. A dam may be thrown over the river, provided a lock is so constructed as to permit boats to pass with little or no delay, and without charge. A temporary delay, such as passing a lock, could not be considered as an obstruction prohibited by the ordinance.' 'A draw-bridge across a navigable water is not an obstruction. As this would not be a work connected with the navigation of the river, no toll, it is supposed, could be charged for the passage of boats. But the obstruction would be only momentary, to raise the draw; and as such a work may be very important in a general intercourse of a community, no doubt is entertained as to the power of the state to make the bridge.' 3 McLean, 226. The same observations may be made of the subsequent legislation of congress declaring that navigable rivers within the territories of the United States shall be deemed public highways. 1 St. p. 468, § 9; 2 St. p. 279, § 6. As to the appropriations by congress, no money has been expended on the improvements of the Chicago river above the first bridge from the lake, known as Rush-street bridge. No bridge, therefore, interferes with the navigation of any portion of the river which has been thus improved. But, if it were otherwise, it is not perceived how the improvement of the navigability of the stream can affect the ordinary means of crossing it by ferries and bridges. The free navigation of a stream does not require an abandonment of those means. To render the action of the state invalid in constructing or authorizing the construction of bridges over one of its navigable streams, the general government must directly interfere so as to supersede its authority and annual what it has done in the matter. It appears from the testimony in the record that the money appropriated by congress has been expended almost exclusively upon what is known as the outer harbor of Chicago, a part of the lake surrounded by breakwaters. The fact that formerly a light-house was erected where now Rush-street bridge stands in no respect affects the question. A ferry was then used there, and before the construction of the bridge the site as a light-house was abandoned. The existing light-house is below all the bridges. The improvements on the river above the first bridge do not represent any expenditure of the government. From any view of this case, we see no error in the action of the court below, and its decree must accordingly be affirmed; and it is so ordered.

108.US.491

The payment of a special internal revenue tax for selling liquors in a collection district does not authorize the licensee to introduce or to attempt to introduce spirituous liquors or wines into Indian country in violation of the act of June 30th, 1834, 4 Stat. 729, as amended by the act of March 15th, 1864, 18 Stat. 29, when an Indian treaty, ceding lands embraced within the territory covered by the license, provides that the laws of the United States then in force, or which might thereafter be enacted, prohibiting the introduction and sale of spirituous liquors in the Indian country, should be in full force and effect throughout the country ceded, till otherwise ordered by Congress or the President. Same case in 93 U. S. 188, referred to.

When the case went back to the district court for trial, and the demurrer was overruled, the claimant Lariviere filed an answer to the libel containing inconsistent defenses. He first denied that he ever introduced into the ceded territory the liquors as charged, and he claimed the property, except the liquors, as his; and as to those he disclaimed ownership. But, although denying their introduction, he averred that the acts charged against him were done under the authority of the war department, and that the liquors were not introduced for the purpose of sale or in the violation of any law or treaty. He subsequently amended this answer by adding an averment to the effect that the territory ceded under the treaty mentioned, lay within the limits of a collection district under the United States internalrevenue laws; that persons resident within it and within the county of Polk, and at the village of Crookston, engaged in the business of retailing spirituous liquors, had been assessed and required to pay taxes upon their business, and were thereby licensed to carry on that business and sell spirituous liquors in that county; and that he also had been thus assessed, taxed, and licensed as a retail dealer, and that his license had never been revoked nor the tax paid for the same returned. The other claimant, Guerin, averred that the property seized, except the liquors, had been transferred to him as collateral security for a debt, and denied every traversable allegation in the information save the seizure by the Indian agent. On the trial evidence was introduced by the government tending to show that Lariviere introduced the liquors mentioned with the intent to sell them to Indians under the charge of the United States Indian agents, and also to show the circumstances of the seizure. Against the objection of the government Lariviere gave evidence of all the circumstances touching the assessment and collection of the internal-revenue tax from him and other sellers of liquor by retail in the county of Polk. The court charged the jury that while the mere introduction of spirituous liquors in the ceded territory was prima facie evidence of an unlawful purpose, this evidence was neutralized by proof that the claimant held at the time a receipt of the collector of internal revenue for the special tax required to be paid by a retail liquor dealer, and hence that the burden of proof was shifted on the government to show that the liquors were introduced with the intent to sell them to the Indians. It also charged that 'the uncontroverted facts found for the defense were a license to Lariviere to take liquor to Crookston, and gave him the right to do so, and that, for so doing, he was subject to no penalty under the national law.' To this charge an exception was taken. There was a verdict for the claimant and judgment was entered thereon that the libel be dismissed. The case was then taken to the circuit court and the judgment of the district court was there affirmed. To review that judgment the case is brought here. The only question for our consideration, as thus seen, is whether Lariviere's payment of the special internal-revenue tax for selling liquors in the collection district embraced by the ceded territory exempted him from the penalties of the act of 1864. We are clear that it did not. Congress never intended to interfere with the operation of the treaty, or to sanction the sale of liquors in any ceded territory, where an express stipulation provides that they shall not be sold. The evils resulting from the use of spirituous liquors are so many and so appalling that the government has, from an early period of our history, abored to prevent their introduction among the Indians. In order more effectually to secure this result, laws prescribing severe penalties have been enacted, and authority has been vested in the Indian agents to arrest traffickers in the prohibited article, and to seize and confiscate their property found with it. It would require very clear expressions in any general legislation to authorize the inference that congress proposed to depart from its long-established policy in regard to a matter of such vital importance to the peace and to the material and moral well-being of these wards of the nation. There is also another consideration. The laws of congress are always to be construed so as to conform to the provisions of a treaty, if it be possible to do so without violence to their language. This rule operates with special force where a conflict would lead to the abrogation of a stipulation in a treaty making a valuable cession to the United States. The unauthorized introduction of liquors into the ceded territory constitutes the offense, although if they were not sold or given away no injurious consequences would follow; but once allow their indiscriminate or general introduction and the law would be evaded without possibility of detection. The introduction is, therefore, forbidden, unless permitted by the order of the war department or of some officer authorized by it. The establishment of the collection district, embracing bracing the ceded territory, while providing for the collection of taxes on certain kinds of business, did not authorize, nor was it intended to authorize, business which was otherwise specifically forbidden. The License Tax Cases, 5 Wall. 462, do not conflict with , but rather support, this view. They merely decide that the licenses of the United States for selling liquors and dealing in lotteries exempted the party from the penalties of the revenue law to which he would otherwise be subjected. They gave no exemption from state laws or the taxes they imposed for the business carried on. They conferred no authority by themselves to carry on any business within a state. They were in the nature of taxes on the business which the state permitted. The court, speaking by Chief Justice CHASE, said that if the licenses were to be regarded as giving authority to carry on the branches of business which they licensed, it might be difficult, if not impossible, to reconcile the granting of them with the constitution. 'But,' he added, 'it is not necessary to regard these laws as giving such authority. So far as they relate to trade within state limits, they give none and can give none. They simply express the purpose of the government not to interfere by penal proceedings with the trade nominally licensed, if the required taxes are paid. The power to tax is not questioned, nor the power to impose penalties for nonpayment of taxes. The granting of a license, therefore, must be regarded as nothing more than a mere form of imposing a tax, and implying nothing except that the licensee shall be subject to no penalties under national law if he pays it.' Though these cases are cited by the defendant, they affirm the doctrine that the licenses under the then existing law, being designed merely to secure the payment of taxes to the United States, did not interfere with other legitimate regulations of business, nor sanction it where otherwise prohibited. The case of The Cherokee Tobacco, 11 Wall. 616, cannot be treated as authority against the conclusion we have reached. The decision only disposed of that case, as three of the judges of the court did not sit in it, and two dissented from the judgment pronounced by the other four. It follows from the views expressed that the judgment of the court below must be reversed and a new trial had; and it is so ordered.

108.US.125

1. A non-enumerated article, if found to bear a substantial similitude to an enumerated article, either in material, quality, texture, or use to which it may be applied, is made by section 2499, Rev. Stat., liable to the duty imposed apon the enumerated article. 2. A non-enumerated article composed of cow-hair and cotton, resembling and used for the same purposes as an enumerated article of goats' hair and cotton, is liable to the same duty as the latter.

David Fox and Rose Fox, the defendants in error, imported from Liverpool certain goods called velours, composed of cow or calf hair, vegetable fiber, and cotton, an imitation of seal-skin, and used for manufacturing hats and caps. The goods were not specifically enumerated in the tariff acts, but 'in the use to which they were put, and in appearance and material, resembled manufactures of goats' hair and cotton more nearly than any other article of commerce. The goats' hair and cotton goods are also imitations of seal-skin, and all these goods of both kinds are frequently commercially called 'seals,' and are made to represent seal-skin, and are used for the purposes for which seal-skin is used.' The component material of chief value in velours is cow and calf hair, and not cotton. The provisions of the tariff acts involved in the determination of the duties to be paid on the importation are as follows: 'REV. ST. § 2504, SCHEDULE A. * * * 'Cotton braids, insertings, lace, trimming, or bobbinet, and all other manufactures of cotton, not otherwise provided for, thirty-five per centum ad valorem. 'SCHEDULE L. * * * 'Flannels, blankets, hats of wool, knit goods, balmorals, woolen and worsted yarns, and all manufactures of every description composed wholly or in part of worsted, the hair of the alpaca, goat, or other like animals, except such as are composed in part of wool, not otherwise provided for, valued at not exceeding 40 cents per pound, 20 cents per pound; valued at above 40 cents per pound and not exceeding 60 cents per pound, 30 cents per pound; valued at above 60 cents per pound and not exceeding 80 cents per pound, 40 cents per pound; valued at above 80 cents per pound, 50 cents per pound; and, in addition thereto, upon all the above-named articles, 35 per centum ad valorem. 'Sec. 2499. There shall be levied, collected, and paid on each and every non-enumerated article which bears a similitude, either in material, quality, texture, or the use to which it may be applied, to any article enumerated in this title, as chargeable with duty, the same rate of duty which is levied and charged on the enumerated article which it most resembles in any of the particulars before mentioned; and if any non-enumerated article equally resembles two or more enumerated articles, on which different rates of duty are chargeable, there shall be levied, collected, and paid on such non-enumerated article the same rate of duty as is chargeable on the article which it resembles paying the highest duty; and on all articles manufactured from two or more materials, the duty shall be assessed at the highest rates at which any of its component parts may be chargeable.' The importers claimed that the goods were dutiable at 35 per centum ad valorem as manufactures of cotton, while the collector exacted a duty of 50 cents per pound, and 35 per cent. ad valorem on account of the similitude they bore to manufactures composed wholly or in part of the hair of the goat without wool. The duties were paid according to the demand of the collector, and this suit was brought to recover back the excess of what was paid over the duty on manufactures of cotton; that is to say, to recover back the charge of 50 cents per pound. On the trial the circuit court instructed the jury to find for the importers, and to reverse a judgment upon a verdict under such an instruction this writ of error was brought. Section 2499 of the Revised Statutes is a re-enactment of section 20 of the act of August 30, 1842, c. 270, (5 St. 565,) as to which this court said, in Stuart v. Maxwell, 16 How. 160, speaking through Mr. Justice CURTIS: 'It was designed to afford rules to guide those employed in the collection of revenue in certain cases likely to occur, not within the letter, but within the real intent and meaning, of the laws imposing duties, and thus to prevent evasions of those laws. Manufacturing ingenuity and skill have become very great, and diversities may be expected to be made in fabrics adapted to the same rules and designed to take the same places as those specifically described by some distinctive marks, for the mere purpose of escaping from the duty imposed thereon. And it would probably be impossible for congress, by legislation, to keep pace with the results of these efforts of interested ingenuity. To obviate, in part at least, the necessity of attempting to do so, this section was enacted.' 'By providing for the principal thing, it has provided for all other things which the law declares to be the same. It is only upon this ground that sheer and manifest evasions can be reached. Suppose an article is designed to serve the uses and take the place of some article described, but some trifling or colorable change is made in the fabric or some of its incidents. It is new in the market. No man can say he has ever seen it before or knows it under any commercial name. But it is substantially like a known article which is provided for. The law of 1842 (Rev. St. § 2499) then declares that it is to be deemed the same and to be charged accordingly; that the act of 1846 (the tariff act then in force) has provided for it under the name it resembles.' These observations may well be applied to the present case. The goods in question are 'non-enumerated.' But they are substantially like a manufacture of goats' hair and cotton which is enumerated. They are put to the same uses, look the same, and frequently, in commerce, are called by the same name. They are made of cotton and cow hair, and are evidently of equal quality with the manufactures of cotton and goats' hair, because, in this case, they are charged with a duty of 50 cents per pound, thus indicating a value of 80 cents a pound or over, which calls for the highest duty per pound put on the goats'-hair goods. It would seem to be difficult to find a closer resemblance between two articles of manufacture which were not identically the same. But it is contended that if a non-enumerated 'article is made of materials, any of which are mentioned in the statute, it is dutiable at the highest rate imposed on either of its constituents; if neither the article nor any of its component materials is designated in the tariff, then (and then only) it is dutiable according to its similitude in material, quality, texture, or use; and if, in these particulars, it equally resembles two or more enumerated articles, it pays the highest duty placed upon any of such like articles.' Such, in our opinion, is not the effect of the statute. If an article is found not enumerated in the tariff laws, then the first inquiry is whether it 'bears a similitude, either in material, quality, texture, or use to which it may be applied, to any article enumerated * * * as chargeable with duty.' If it does, and the similitude is substantial, then in the language of the court in Stuart v. Maxwell, supra, 'it is to be deemed the same, and to be charged accordingly.' In other words, although not specifically enumerated, it is provided for under the name of the article it most resembles. If nothing is found to which it bears the requisite similitude, then an inquiry is to be instituted as to its component materials, and a duty assessed at the highest rates chargeable on any of the materials. Any other construction would leave the law open to evasions, which, as was also said in Stuart v. Maxwell, it was the object of this statute, enacted more than 40 years ago and kept continually in force since, to prevent. None of the cases in this court governed by the statute in question sustain the position of the importer. In Stuart v. Maxwell it was not shown that the goods imported bore a similitude to any other article, and so resort was had to their component materials. The same is true of Arthur v. Herman, 96 U. S. 141, where the importation was of 'certain cheap goods, the warp of which was made of cotton and the filling or wood of cattle hair,' and the only question was whether they were to be charged at 35 per cent. ad valorem, under the act of June 30, 1864, c. 171, or at 90 per cent. of 35 per cent., under the act of June 6, 1872, c. 315. This depended on whether cotton was 'the component part of chief value.' There was no attempt to show their similitude to any other article, and both parties agreed that they were dutiable as manufactures of cotton. In Murphy v. Arnson, 96 U. S. 131, the question was whether the article imported resembled essential oil in material, quality, or texture, and the decision was that it did not. Consequently resort was had to the material clause of the similitude act. In Fisk v. Arthur, 103 U. S. 434, an article composed of cotton and linen, cotton being the material of chief value and largely predominating, was adjudged to be dutiable, under the similitude act, as a manufacture of cotton, notwithstanding it was composed of mixed materials, and this because 'in material, quality, and texture, as well as the use to which it is to be put, it is precisely like cotton shirtings.' To say that goods made of cow or calf hair and cotton, which were in all respects like goods made of goats' hair and cotton, and applied to the same uses, often bearing the same name in commerce, were to be dutiable at one rate as manufactures of cotton, when the goats'-hair goods were assessed at a much higher rate, 'would be to encourage evasions of the descriptive terms in the tariff laws 'by some trifling or colorable change in the fabric or some of its incidents." In our opinion, on the case as made by the bill of exceptions, the court erred in instructing the jury to find for the importer, and the judgment is, consequently, reversed, and the cause remanded, with instructions to grant a new trial.

109.US.446

1. The State of Georgia indorsed the bonds of a railroad company, taking a lien upon the railroad as security-. The company failing to pay interest upon the indorsed bonds, the governor of the State took possession of the road, and put it into the hands of a receiver, who made sale of it to the State. The- State then toole'possession. of it, and took up the indorsed bonds, substituting the. bonds- of the State in their place. The holders of an- issue of mortgage" bonds- issued by the railroad company subsequently to those indorsdd by the State, but before the default in payment of interestk filed a bill in equity to foreclose- their own mortgage and to set aside the, said sale and to be let in as prior in lien, and for other relief affecting the property, and. set forth the above facts, and made the governor and the treasurer of the State parties. - Those officers demurred - .2ed, that the facts in the bill show that the State is so interested in the property-that final relieftcannot be granted without making it a, party, and the court is without jurisdiction. 2. Whenever it is clearly seen that a State is an indispensable party to enable the court, according to the rules which govern its procedure, to grant the relief sought, it will refuse to take jurisdiction.. 3. The cases at law and in equity in which-- the court has taken jurisdiction, when the objection has been interposed that a State was a necessary party-ta enable the court to grant relief, examined and classified. 4. The-case of Vzited States v. Lee, 106 U. S. 196, examined, and the limits of the decision defined. 5. The case of Davis v. Gray, 16 Wall: 203, questioned.

This is an appeal from the decree of the circuit court for the southern district of Georgia, dismissing the bill of complainant on demurrer. The bill is filed by Cunningham a citizen of the state of Virginia, against Alfred H. Colquitt, as governor of the state of Georgia, J. W. Renfroe, as treasurer of the state, the Macon & Brunswick Railroad Company, and A. Flewellen, W. A. Lofton, and George S. Jones, styling themselves directors of said railroad company, John H. James, a citizen of Georgia, and the First National Bank of Macon. The bill sets out, with reasonable fullness and with references to exhibits which make its statements clear, what we will try to state as far as necessary, in shorter terms. It alleges that on the third day of December, 1866, the assembly of Georgia passed an act authorizing the governor to indorse the bonds of the Macon & Brunswick Railroad Company to the extent of $10,000 per mile, and that under this authority the governor indorsed bonds to the amount of $1,950,000 which were afterwards negotiated by said company. The statute under which this was done made the indorsement of these bonds to operate as a prior mortgage upon all the property of the company, which could be enforced by a sale by the governor upon default in payment of the bonds so indorsed, or interest on them as it fell due. In addition to this the company executed and delivered to the governor, on the twenty-second of June, 1870, a written mortgage confirming the lien created by the statute, which was duly acknowledged and recorded. October 27, 1870, the legislature, by an act amending the act of December 3, 1866, authorized the governor to indorse an additional $3,000 per mile of the bonds of the company, which was done, and of this series of bonds the complainant became the holder and owner of 19 for $1,000 each. It is then alleged that on July 1, 1873, the company failed to pay its interest coupons upon both these sets of indorsed bonds, and that in a few days thereafter the governor, under the power vested in him by the act of 1866, took possession of the road and the property of the company and placed them in the hands of Flewellen as receiver; and that on the first Tuesday in June, 1875, he sold said road to the state of Georgia for the sum of $1,000,000, and made a conveyance of it to the state accordingly, a copy of which is filed as an exhibit to the bill. It is also alleged that the state of Georgia has taken up since that time the entire issue of $1,950,000, giving her own bonds in place of the bonds which she had so indorsed. The bill assails this transaction because the governor, in advertising the sale, gave notice that he would accept in payment for bids bonds of the state at par, of bonds of the first series of $1,950,000 at their market value, or cash, and would not receive any of the second series of $600,000 in payment. Also because the sale was made improvidently, at a bad time, as the governor was informed by his agent, Flewellen, and because the governor was not authorized to bid for the property, and the state had no constitutional power to make the purchase. And it is further alleged that if the sale is not absolutely void, it is voidable, because under the statutory and executed mortgages the state is trustee of the property mortgaged for the benefit of the bondholders, and her purchase can be set aside by the beneficiaries under the trust when they elect to do so. The bill insists that by the taking up and payment of the first series of indorsed bonds their lien on the property is extinguished, and that of the second series is now become paramount, and this suit is brought to foreclose that mortgage lien. And if the court shall be of opinion that the sale was valid, then the bill insists that the holders of the second series were entitled to the paid pro rata under that sale, and that when the legislature of Georgia appropriates any money to pay the bonds which it gave in exchange for $1,950,000 of the indorsed railroad bonds, the amount so appropriated should be divided pro rata between these bonds and the $600,000 of the second series of indorsed bonds. The prayer of the bill is for the appointment of a receiver, to whom all the property of the company shall be delivered; that the mortgage be foreclosed and the proceeds applied to payment of the bonds of the second series so far as necessary for that purpose. Or, if the court shall be of opinion that the sale was valid, that Renfroe be enjoined from paying the coupons of interest on the state bonds exchanged for the first series of bonds, and that the holders thereof be made parties to the suit, and be compelled to account to the holders of the $600,000 series of bonds for their pro rata share of said exchanged bonds; and the bill prays that Colquitt, the governor, and Renfroe, the treasurer, and the three directors of the company be compelled by subpoena to appear and answer it and certain interrogatories in it, and produce certain papers, and that Renfroe be enjoined from paying the coupons on the state bonds, exchanged for the indorsed bonds, and that the state of Georgia may come in and make herself a party defendant to this bill if she should wish to do so; and there is a prayer for general relief. To this bill there was filed by Flewellen, Lofton, and Jones, the directors, a demurrer and plea, as it is called. The plea is to the effect that they have no interest in the road otherwise than as agents of the state of Georgia, for which they hold and control the Macon & Brunswick Railroad and all its property and franchises of every description, and the plea and demurrer both rely on the proposition that the court has no jurisdiction of the case, because it cannot proceed without the state as a party, and that the court cannot compel the state to become a party to the suit. Renfroe, the treasurer, filed a similar plea, and Colquitt, the governor, filed a demurrer and a plea separately. The ground of demurrer stated by the governor is that it is apparent on the face of the bill that the court cannot take cognizance of the matters and things set up in said bill as against the defendant, because it appears that he has no personal interest in the same, but that it is an attempt to make the state of Georgia a party to the suit through the defendant as governor, so as to bind the state by the judgment and decision of the court in the case. On this demurrer of Colquitt and the joint demurrer of the three trustees the case was decided and the bill dismissed. Mr. Justice Woods in dismissing it said: 'The bill is to all intents and purposes a suit against the state. It is mainly her property, and not that of Alfred H. Colquitt or J. W. Renfroe, that is to be affected by the decree of this court. It is the title of the state that is assailed. The attack is not made against the state directly, but through her officers This indirect way of making the state a party is just as open to objectior as if the state had been named as a defendant.' 3 Woods, 426. The failure of several of the states of the Union to pay the debts which they have contracted and to discharge other obligations of a contract character, when taken in connection with the acknowledged principle that no state can be sued in the ordinary courts as a defendant, except by her own consent, has led, in recent times, to numerous efforts to compel the performance of their obligations by judicial proceedings to which the state is not a party. These suits have generally been instituted in the circuit courts of the United States, or have been removed into them from the state courts. The original jurisdiction of this court has also been invoked in the recent cases of New Hampshire v. Louisiana and New York v. Same, [2 SUP. Ct. REP. 176.] These latter suits were based on the proposition that the constitutional provision that states might sue each other in this court would enable a state whose citizens were owners of obligations of another state to take a transfer of those obligations to herself and sue the defaulting state in the court. The doctrine was overruled in those cases at the last term by the unanimous opinion of the court. In the suits which have been instituted in the circuit courts the effort has been, while acknowledging the incapacity of those courts to assume jurisdiction of a state as a party, to proceed in such a manner against the officers or agents of the state government, or against property of the state in their hands, that relief can be had without making the state a party. The same principle of exemption from liability to suit as applied to the government of the United States has led to like efforts to enforce rights against the government in a similar manner. And it must be confessed that, in regard to both classes of cases, the questions raised have rarely been free from difficulty, and the judges of this court have not always been able to agree in regard to them. Nor is it an easy matter to reconcile all the decisions of the court in this class of cases. While no attempt will be made here to do this, it may not be amiss to try to deduce from them some general principles, sufficient to decide the case before us. It may be accepted as a point of departure unquestioned, that neither a state nor the United States can be sued as defendant in any court in this country without their consent, except in the limited class of cases in which a state may be made a party in the supreme court of the United States by virtue of the original jurisdiction conferred on that court by the constitution. This principle is conceded in all the cases, and whenever it can be clearly seen that the state is an indispensable party to enable the court, according to the rules which govern its procedure, to grant the relief sought, it will refuse to take jurisdiction. But in the desire to do that justice, which in many cases the courts can see will be defeated by an unwarranted extension of this principle, they have in some instances gone a long way in holding the state not to be a necessary party, though some interest of hers may be more or less affected by the decision. In many of these cases the action of the court has been based upon principles whose soundness cannot be disputed. A reference to a few of them may enlighten us in regard to the case now under consideration. 1. It has been held in a class of cases where property of the state, or property in which the state has an interest, comes before the court and under its control, in the regular course of judicial administration, without being forcibly taken from the possession of the government, the court will proceed to discharge its duty in regard to that property. And the state, if it choose to come in as plaintiff, as in prize cases or to intervene in other cases when she may have a lien or other claim on the property, will be permitted to do so, but subject to the rule that her rights will receive the same consideration as any other party interested in the matter, and be subjected in like manner to the judgment of the court. Of this class are the cases of The Siren, 7 Wall. 157; The Davis, 10 Wall. 20; and Clark v. Barnard, [2 SUP. CT. REP. 878,] at the last term. 2. Another class of cases is where an individual is sued in tort for some act injurious to another in regard to person or property, to which his defense is that he has acted under the orders of the government. In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him. See Mitchell v. Harmony, 13 How. 115; Bates v. Clark, 95 U. S. 209; Meigs v. McClung, 9 Cranch, 11; Wilcox v. Jackson, 13 Pet. 498; Brown v. Huger, 21 How. 305; Grisar v. McDowell, 6 Wall. 393. To this class belongs also the recent case of U. S. v. Lee, 106 U. S. 196, [S. C. 1 SUP. CT. REP. 240,] for the action of ejectment in that case is, in its essential character, an action of trespass, with the power in the court to restore the possession to the plaintiff as part of the judgment. And the defendants, Strong and Kaufman, being sued individually as trespassers, set up their authority as officers of the United States, which this court held to be unlawful, and, therefore, insufficient as a defense. The judgment in that case did not conclude the United States, as the opinion carefully stated, but held the officers liable as unauthorized trespassers, and turned them out of their unlawful possession. 3. A third class, which has given rise to more controversy, is where the law has imposed upon an officer of the government a well-defined duty in regard to a specific matter, not affecting the general powers or functions of the government, but in the performance of which one or more individuals have a distinct interest capable of enforcement by judicial process. Of this class are writs of mandamus to public officers, as in Marbury v. Madison, 1 Cranch, 137; Kendall v. Stokes, 3 How. 87; U. S. v. Schurz, 102 U. S. 378; U. S. v. Boutwell, 17 Wall. 604. But in all such cases, from the nature of the remedy by mandamus, the duty to be performed must be merely ministerial, and must involve no element of discretion to be exercised by the officer. It has, however, been much insisted on that in this class of cases, where it shall be found necessary to enforce the rights of the individual, a court of chancery may, by a mandatory decree or by an injunction, compel the performance of the appropriate duty, or enjoin the officer from doing that which is inconsistent with that duty and with plaintiff's rights in the premises. Perhaps the strongest assertion of this doctrine is found in the case of Davis v. Gray, 16 Wall. 203. In that case, the state of Texas having made a grant of the alternate sections of land along which a railroad should thereafter be located, and the railroad company having surveyed the land at its own expense and located its road through it, the commissioner of the state land-office and the governor of the state were, in violation of the rights of the company, selling and delivering patents for the sections to which the company had an undoubted vested right. The circuit court enjoined them from doing this by its decree, which was affirmed in this court. Judge HUNT did not sit in the case, and Justice DAVIS and Chief Justice CHASE dissented, on the ground that it was in effect a suit against the state. Though there are some expressions in the opinion which are unfavorably criticised in the opinions of both the majority and minority of this court in the recent case of U. S. v. Lee, supra, the action of the court has not been overruled. But it is clear that, in enjoining the governor of the state in the performance of one of his executive functions, the case goes to the verge of sound doctrine, if not beyond it, and that the principle should be extended no further. Nor was there in that case any affirmative relief granted by ordering the governor and land commissioner to perform any act towards perfecting the title of the company. The case of the Board of Liquidation v. McComb is to the same effect. The board of liquidation was charged by the statute of Louisiana with certain duties in regard to issuing new bonds of the state in place of old ones, which might be surrendered for exchange by the holders of the latter. The amount of new bonds to be issued was limited by a constitutional provision. McComb, the owner of some of the new bonds already issued, filed his bill to restrain the board from issuing that class of bonds in exchange for a class of indebtedness not included within the purview of the statute, on the ground that his own bonds would thereby be rendered less valuable. This court affirmed the decree of the circuit court enjoining the board from exceeding its power in taking up by the new issue a class of state indebtedness not within the provisions of the law on that subject. 92 U. S. 531. In the opinion in that case the language used by Mr. Justice BBADLEY well and tersely thus expresses the rule and its limitations: 'The objections to proceeding against state officers by mandamus or injunction are—First, that it is in effect proceeding against the state itself; and, second, that it interferes with the official discretion vested in the officers. It is conceded that neither of these can be done. A state, without its consent, cannot be sued as an individual; and a court cannot substitute its own discretion for that of executive officers, in matters belonging to the proper jurisdiction of the latter. But it has been settled that where a plain official duty requiring no exercise of discretion is to be performed, and performance is refused, any person who will sustain a personal injury by such refusal may have a mandamus to compel performance; and when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it.' It is believed that this is as far as this court has gone in granting relief in this class of cases. The case of Osborn v. Bank of U. S. 9 Wheat. 738, often referred to, was upon this principle, and goes no further; for, in that case, a preliminary injunction of the court forbidding the state officer from placing the money of the bank, which he had seized, in the treasury of the state, having been disregarded, the final decree corrected this violation of the injunction by requiring the restoration of the money thus removed. See Louisiana v. Jumel, 107 U. S. 711; [S. C. 2 SUP. CT. REP. 128.] On the other hand, in the cases of Louisiana v. Jumel and Elliott v. Wiltz, decided at the last term, very ably argued and very fully considered, the court declined to go any further. 107 U. S. 711; [S. C. 2 SUP. CT. REP. 128.] In the first of these cases the owners of the new bonds issued by the board of liquidation, mentioned in McComb's Case, supra, brought their bill in equity, in the circuit court of the United States, to compel the auditor of state and the treasurer of the state to pay out of the treasury of the state the overdue interest coupons on their bonds, and to enjoin them from paying any part of the taxes collected for that purpose for the ordinary expenses of the government. They at the same time applied to the state court for a writ of mandamus to the same officers, which suit was removed into the circuit court of the United States. In this they asked that these officers be commanded to pay out of the moneys in the treasury the taxes which they maintained had been assessed for the purpose of paying the interest on their bonds, and to pay such sums as had already been diverted from that purpose to others by the officers of the government. The circuit court refused the relief asked in each case, and this court affirmed the judgment of that court. The short statement of the reason for this judgment is that as the state could not be sued or made a party to such proceeding, there was no jurisdiction in the circuit court, either by mandamus at law or by a decree in chancery, to take charge of the treasury of the state, and, seizing the hands of the auditor and treasurer, to make distribution of the funds found in the treasury in the manner which the court might think just. The chief justice said: 'The treasurer of the state is the keeper of the money collected from this tax, just as he is the keeper of other public moneys. The taxes were collected by the tax collectors, and paid over to him—that is to say, into the state treasury—just as other taxes were when collected. He is no more a trustee of these moneys than he is of all other public moneys. He holds them only as agent of the state. If there is any trust, the state is the trustee; and, unless the state can be sued, the trustee cannot be enjoined. The officers owe duty to the state alone, and have no contract relations with the bondholders. They can only act as the state directs them to act, and hold as the state allows them to hold. It was never agreed that their relations with the bondholders should be other than as officers of the state, or that they should have any control over this fund except to keep it like other funds in the treasury, and pay it out according to law. They can be moved through the state, but not the state through them.' We think the foregoing cases mark, with reasonable precision, the limit of the power of the courts in cases affecting the rights of the state or federal governments in suits to which they are not voluntary parties. In actions at law, of which mandamus is one, where an individual is sued, as for injuries to person or to property, real or personal, or in regard to a duty which he is personally bound to perform, the government does not stand behind him to defend him. If he has the authority of law to sustain him in what he has done, like any other defendant he must show it to the court and abide the result. In either case the state is not bound by the judgment of the court, and generally its rights remain unaffected. It is no answer for the defendant to say I am an officer of the government and acted under its authority unless he shows the sufficiency of that authority. Courts of equity proceed upon different principles in regard to parties. As was said in Barney v. Baltimore, 6 Wall. 280, there are persons who are merely formal parties without real interest, and there are those who have an interest in the suit, but which will not be injured by the relief sought, and there are those whose interest in the subject-matter of the suit renders them indispensable as parties to it. Of this latter class the court said, in Shields v. Barrow, 17 How. 130, 'they are persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without affecting that interest, or leaving the controversy in such a condition that its final disposition may be wholly inconsistent with equity and good conscience.' 'In such cases,' says the court in Barney v. Baltimore, supra, 'the court refuses to entertain the suit when these parties cannot be subjected to its jurisdiction.' In the case now under consideration the state of Georgia is an indispensable party. It is in fact the only proper defendant in the case. No one sued has any personal interest in the matter, or any official authority to grant the relief asked. No foreclosure suit can be sustained without the state, because she has the legal title to the property, and the purchaser under a foreclosure decree would get no title in the absence of the state. The state is in the actual possession of the property, and the court can deliver no possession to the purchaser. The entire interest, adverse to plaintiff, in this suit is the interest of the state of Georgia in the property, of which she has both the title and possession. On the hypothesis that the foreclosure by the governor was valid, the trust asserted by plaintiff is vested in the state as trustee, and not in any of the officers sued. No money decree can be rendered against the state, nor against its officers, nor any decree against the treasurer, as settled in Louisiana v. Jumel, supra. If any branch of the state government has power to give plaintiff relief it is the legislative. Why is it not sued as a body, or its members by mandamus to compel them to provide means to pay the state's indorsement? The absurdity of this proposition shows the impossibility of compelling a state to pay its debts by judicial process. The decree of the circuit court is affirmed. HARLAN, J., dissenting. The bill in this suit was filed by Cunningham, a citizen of Virginia, in behalf of himself and all holders of the second series of the bonds of the Macon & Brunswick Railroad Company, indorsed by the state of Georgia, who may choose to be made parties to the suit and share the expenses thereof. The defendants are: The Macon & Brunswock Railroad Company, a corporation of Georgia; Edward A. Flewellyn, W. L. Lofton, and George S. Jones, citizens of Georgia, and styling themselves 'Directors of the Macon & Brunswick Railroad;' J. W. Renfroe, treasurer, and Alfred H. Colquitt, governor, of the state of Georgia, both citizens of that state; the First National Bank of Macon, a corporation created under the laws of the United States and located at Macon, Georgia; and John H. James, a citizen of Georgia. The suit relates to the Macon & Brunswick Railroad, of which Flewellyn, Lofton, and Jones, as directors aforesaid, are in possession, and which they are managing and operating in entire disregard, as the bill alleges, of the rights of complainant and other holders of the before-mentioned bonds. But the suit has other features of which no notice is taken in the opinion of the court. The bill alleges that on or about July 2, 1873, the then governor of Georgia not only seized the railroad and all other property of the company, but certain other property embraced in a deed of trust to one Whittle, which was not covered by the statutory and executed mortgages, so far as the $1,950,000 series of indorsed bonds is concerned, because acquired by the company, after the last of that series had been indorsed, with funds other than the proceeds of the bonds, but which was covered by the mortgages so far as the $600,000 series is concerned, having been bought prior to the indorsement of those bonds. The property covered by the deed of trust to Whittle was, the bill alleges, transferred to the trustees therein named, with directions to dispose of it, and with the proceeds to redeem certain fare-bills of the company; but the trust was never carried out, because the fare-bills were fully paid out of the earnings of the railroad. The bill charges that the sale at which the governor of Georgia purchased the property for the state was void: (1) 'Because neither the legislature nor the governor had the right to exclude the $600,000 series of indorsed bonds from being used as so much cash, in the purchase of said road, at their face value,—certainly they were entitled to be so used, in the event of the exhaustion of the $1,950,000, which themselves should have been received as cash at par.' (2) 'Because the governor was not authorized to bid on said proper y for the state, and the state had no constitutional power to make the purchase; or, if said sale is not void, it is certainly voidable, because, under the statutory and executed mortgages, the state is the trustee of the property mortgaged for the benefit of the bondholders, and had no right to buy at her own sale, as such trustee, without incurring the risk of having said sale set aside at the instance of any beneficiary under the trust, and your orator, as such beneficiary, elects to set aside such sale.' The suit proceed in part upon the general ground that the mortgages in question are mortgages to the governor of Georgia, as trustee for the bondholders, to secure the payment of bonds indorsed by the state, and not mortgages of indemnity to save the state harmless against liability incurred by her indorsement. If, however, the court should be of opinion that the mortgages are for the indemnity of the state, and that the sale of the railroad and purchase by the state are valid, then the complainant insists that both series of indorsed bonds stand upon an equal footing, and that the sums paid by the treasurer of the state, in taking up the coupons of the state bonds which have been exchanged for the $1,950,000 series of the Macon & Brunswick Railroad indorsed bonds, represent a portion of these proceeds, and should be paid pro rata upon both series of bonds; that when the legislature of Georgia appropriates any sum for the principal of the state bonds so exchanged, such sum should in like manner be divided pro rata among the holders of both series of indorsed bonds; and that the state bonds so exchanged should themselves be treated as the proceeds of the sale of the railroad, and divided pro rata among all the holders of both series of state indorsed bonds. The case went off in the court below on demurrer and pleas which questioned the right of complainant to relief solely upon the ground that the suit was against the state, which was not, and could not be made, a party to the suit. It is true, as stated in the opinion of the court, that the property to which the suit relates is in the actual possession of some of the defendants, who assert no individual claim thereto, but are acting for and on behalf of the state. It is also true that the apparent legal title to the property embraced by the mortgages, other than such as was covered by the deed to Whittle, stands in the name of the state. But the suit proceeds upon the ground that Georgia, by her officers, is not rightfully in possession, and that no valid title passed to the state by virtue of the sale in question. The issue is distinctly made by the bill that the governor was not authorized to bid in the property, and that the state had no constitutional power to make the purchase. But the court fails to consider or pass upon these questions. If the court had found that the sale under which the state claimed was valid, and that the governor had legal authority to make the purchase in virtue of which the officers of the state claim to be rightfully in possession in her behalf; or had it been adjudged that the complainant, and those united in interest with him, had no lien or claim upon the property,—I should not, perhaps, have expressed any dissent, however much I may have differed with my brethren upon such questions. In other words, if the state was ascertained to be the lawful owner and entitled to the possession of the property in question, I should recognized the legal difficulties in the way of enforcing a lien thereon for any purpose in behalf of others; for the enforcement of such lien would, in the case supposed, necessarily disturb the rightful possession of the state, which could not be sued against her will, and without whose presence in the suit a final comprehensive decree could not be passed. But such is not the case before us. The cause to be determined is that made by the bill. Its averments are admitted by the demurrer and are not controverted by the pleas. They show that the property, alth ugh held by officers of the state as her absolute property, is not rightfully so held. It is this aspect of the present decision which constrains me to dissent from the opinion of the court. If the citizen asserts a claim or lien upon property in the possession of officers of a state, the doors of the courts of justice, whether the suit be at law or in equity, ought not to be closed against him because those officers assert ownership in the state. The court should examine the case so far as to determine whether the state's title rests upon a legal foundation. If that title is found to be insufficient, and if the state, claiming its constitutional exemption from suit, refuses to appear in the suit as a party of record, the court ought to proceed to a final decree as between for complainant and those who are in possession of the property, leaving the state to assert her claim in any suit she might bring. This must be so, otherwise the citizen may be deprived of his property and denied his legal rights simply because the officers of a state take possession of and hold it for the state. Such was the ruling of this court in U. S. v. Lee, 106 U. S. 196; [S. C. 1 SUP. CT. REP. 240.] That was an action to recover the possession of what was formerly known as the Arlington estate. The defendants held possession of the property in no other capacity than as officers and agents of the United States. The attorney general of the United States appeared, and in due form gave the court to understand that the property in controversy was then, and for more than 10 years had been, held, occupied, and possessed by the United States, through their officers and agents, as public property for public purposes, in the exercise of their sovereign and constitutional powers, namely, as a military station, and as a national cemetery established for the burial of deceased soldiers and sailors of the Union. Upon these grounds it was contended that no action could be maintained which would disturb the control of those who were in possession for the United States. The contention, in behalf of the government, was that the United States could not be sued without their consent, and that the maintenance of a suit against their officers and agents for the purpose of ousting them from the possession of the Arlington cemetery, would bean encroachment upon the powers intrusted by the constitution to the legislative and executive departments. But to this argument the response of this court was: That under the American system of government the people, called elsewhere subjects, were sovereign; that their 'rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of a monarch;' that 'the citizen here knows no person, however, near to those in power, or however powerful himself, to whom he need yield the rights which the law secures to him when it is well administered;' that 'when he, in one of the courts of competent jurisdiction, has established his right to property, there is no reason why deference to any person, natural or artificial, not even the United States, should prevent him from using the means which the law gives him for the protection and enforcement of that right;' 'that no man in this country is so high that he is above the law; no officer of the law may set that law at defiance with impunity; all the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.' Upon examination of the doctrine that, except where congress has provided, the United States cannot be sued, we held that it had no application to officers and agents of the United States who, holding possession of property for public uses, are sued therefor by a person claiming to be the owner thereof or entitled thereto; but the lawfulness of that possession and the right or title of the United States to the property may, by a court of competent jurisdiction, be the subject-matter of the inquiry, and adjudged accordingly. In the case just cited we uoted, with approval, the language of Chief Justice MARSHALL in U. S. v. Peters, 5 Cranch, 115, where, speaking for the court, he said that 'it certainly can never be alleged that a mere suggestion of title in a state to property in possession of an individual must arrest the proceedings of the court, and prevent them looking into the suggestion and examining the validity of the title.' In U. S. v. Lee we also referred with approval to the decision in Osborn v. Bank of U. S. 9 Wheat. 738. That was a suit by the Bank of the United States against the auditor, treasurer, and other agents of the state of Ohio. The state, by its officers, levied a tax upon the bank, which it refused to pay. The state auditor seized the money of the bank in payment of the tax, and delivered it to the treasurer of the state. The latter held it when the suit was brought, and the right of the state to hold the money in discharge of its taxes was the fundamental question in the case. The state was not made a party, because by the constitution the judicial power of the United States did not extend to a suit against one of the United States by citizens of another state. It was conceded that the state was the real party in interest. That of which the bank complained were the acts of the defendants in their official character and done in obedience to the statutes of Ohio. The contention, therefore, was that as the state could not be sued, the suit must be dismissed. But to this the court, speaking by Chief Justice MARSHALL, replied: 'If the state of Ohio could have been made a party defendant, it can scarcely be denied that this would be a strong case for an injunction. The objection is that as the real party cannot be brought before the court, a suit cannot be sustained against the agents of that party; and cases have been cited to show that a court of chancery will not make a decree unless all those who are substantially interested be made parties to the suit. This is certainly true where it is in the power of the plaintiff to make them parties; but if the person who is the real principal, the person who is the true source of the mischief, by whose power and for whose advantage it is done, be himself above the law, be exempt from all judicial process, it would be subversive of the best-established principles to say that the laws could not afford the same remedies against the agent employed in doing the wrong which they would afford against him could his principal be joined in the suit.' The relief asked was granted without the state becoming a party to the record. In U. S. v. Lee the language just quoted from Osborn v. Bank of U. S. was distinctly approved, and the adjudged cases were held to show that the proposition, that when an individual is sued in regard to property which he holds in his capacity as an officer or agent of the United States, his possession cannot be disturbed when that fact is brought to the attention of the court, has been overruled and denied in every case where it has been necessary to decide it. In my judgment it is impossible to reconcile the decision here with the ruling in the Arlington Case, 106 U. S. 196; [S. C. 1 SUP. CT. REP. 240.] As I concurred in the opinion and judgment in the latter case, I am constrained to withhold my assent to the present decision. In U. S. v. Lee the judicial power was deemed ample to oust officers of the United States from the possession of property claimed by them, not as individuals, but as the representatives of their government. The possession of the government, by its officers, did not prevent the court from inquiring into the alleged title of the United States, and from awarding possession to those who claimed it as their property. But in the case before us the state of Georgia is allowed an exemption which the court did not feel at liberty to extend to the United States. The claim of complainant is that he and others, holding bonds indorsed by that state, have a lien upon property in the possession of certain individuals. The latter assert a valid, complete title and the right of exclusive possession in the state. But the complainant contends that the alleged title of the state is not good in law; that the sale, in virtue of which the state asserts title and holds possession, was not a valid sale; that in any event the state or her governor holds the title merely as a trustee for others. In effect, my brethren say that they will not determine these matters, and that because it appears that the state is a substantial party in interest, and that the defendants are only her officers in possession in her behalf, the complainant and those united in interest with him must to out of court. It seems to me that the grounds upon which the court proceeds would have led to a different conclusion, not only in U. S. v. Lee, but in all the prior decisions therein referred to as authority for the judgment in that case. The court say that the judgment in U. S. v. Lee did not conclude the United States. So it may be said here, that no decree rendered would have concluded the state of Georgia had she declined to appear in the suit. But as, in the former case, the court did not decline to give relief because of the mere assertion of title in the United States, so in this case the mere assertion of title in the state should not have prevented an adjudication as to complainants' claim. Had the court ascertained that the property in contest was in the rightful possession and control of the state then, but not before, the question would have arisen whether the bill must not be dismissed, so long as the state refused to become a party to the suit. The court in its opinion reviews numerous other cases, and states the principles upon which, in its judgment, they were decided. I content myself with saying that the correctness of that review is not conceded. Limitations and qualifications are now placed upon former decisions, which their language, I submit, does not justify. A doubt is now expressed as to whether Davis v. Gray, 16 Wall. 215, did not go beyond the verge of sound doctrine; this, notwithstanding the decision in the Arlington Case was made to rest largely upon davis v. Gray. In the Arlington Case we quoted from Davis v. Gray, a suit in equity, the following statement of the doctrine applicable to suits in the determination of which a state is interested. 'Where the state is concerned, the state should be made a party, if it can be done. That it cannot be done, is a sufficient reason for the omission to do it, and the court may proceed to decree against the officers of the state in all respects as if the state were party to the record. In deciding who are parties to the suit, the court will not look beyond the record. Making a state officer a party does not make the state a party, although her law may have prompted his action, and the state may stand behind him as a real party in interest. A state can be made a party only by shaping the bill expressly with that view, as where individuals or corporations are intended to be put in that relation to the case.' The only comment made in the Arlington Case upon this language was, 'that though not prepared to say now that the court can proceed against the officer 'in all respects' as if the state were a party, this may be taken as intimating in a general way the views of the court at that time.' But I especially dissent from the statement by the court of the question involved in Louisiana v. Jumel, 107 U. S. 711; [S. C. 2 SUP. CT. REP. 128.] Had the court there denied relief upon the ground that granting it would be 'to take charge of the treasury of the state, and, seizing the hands of the auditor and treasurer, to make distribution of the funds found in treasury in the manner which the court might think just,' I should not, in that case, have expressed and dissent from the action of my brethren. I am unwilling by silence to accede to the sugge tion that the substantial relief asked in Louisiana v. Jumel could not have been granted without taking charge of the treasury of the state. There were in the hands of the treasurer of Louisiana money raised by taxation under certain constitutional and statutory provisions. It was money which, by contract with creditors of the state, was set apart and appropriated to the payment of the interest due on designated bonds of the state. The records of the state treasurer's office showed the exact amount obtained by taxation for that purpose. It was in the power of the officers of the state to have paid that money out in discharge of her contract obligations without the slightest confusion in the accounts of the state treasurer. The contrary was not claimed by those officers. But the treasurer and other officers declined to apply the money in their hands for the purpose to which it had been dedicated. They rested their refusal upon an ordinance passed by the state, which was conceded, on all hands, to be a palpable violation of the constitution of the United States, and therefore null and void. As a reason for not discharging a plain official duty, imposed by law, those officers referred to a void provision in the constitution of Louisiana, and it was held that there was no power in the courts of the Union to compel the performance of that duty. The court declined to give any relief against the state officers of Louisiana, partly upon the ground that the relief asked 'will require the officers, against whom the process is issued, to act contrary to the positive orders of the supreme political power of the state, whose creatures they are, and to which they are ultimately responsible in law for what they do.' 'They must,' proceeded this court, 'use the public money in the treasury and under their official control in one way, when the supreme power has directed them to use it in another, and they must raise more money by taxation, when the same power has declared that it shall not be done.' Thus, the constitution of the United States, which is the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding, was, as I then thought and still think, subordinated to 'the supreme political power' of the state of Louisiana. My brethren declare it to be impossible to compel a state to pay its debts by judicial process. As no decree was asked against the state on the bonds held by complainant, and since the state was not made a party to the record, it is difficult to perceive why it was deemed necessary to make that declaration. But if thereby it was meant that no state can be sued as a party to the record, and no judgment rendered against it as a party defendant, the proposition will not be disputed. I submit, however, that under our system of government the citizen may demand that the courts shall determine his claim to, or his alleged lien upon, property, by whatever individuals that property may be held, and that he cannot be denied an adjudication and enforcement of that claim merely because the individuals sued assert right of possession and title in the government they represent. The hardship and injustice of a different rule is well illustrated in the present case, especially as respects the property embraced by the deed of trust to Whittle. The bill alleges, and the demurrer admits, that that property was not covered by the statutory and executed mortgages upon which the state rests its claim. If these averments are true, the state of Georgia has no pretense of right, by its officers, to hold that property. But my brethren adjudge—if I do not misapprehend the opinion—that the assertion by defendants of title in the state is sufficient to preclude judicial inquiry into the rightfulness of their possession or the validity of the state's title. My brethren say that 'on the hypothesis that the foreclosure by the governor was valid, the trust asserted by plaintiff is vested in the state as trustee, and not in any of the officers said.' But may not the court inquire whether that hypothesis be sound? Must it be assumed to be sound because the officers of the state so declare? Besides, if the alleged trust was vested in the state as trustee,—if, as claimed by complainant, the state became the trustee of the property mortgaged for the benefit of the bondholders,—may not the court proceed to a decree as between the parties to the record? If the trustee cannot be made a party, and refuses to appear, the court ought not, for that reason, to permit the interests of others to be sacrificed. If the officers of the United States may be deprived of the possession of property held by them for the government, but the title to which is judicially ascertained, in an action against them only, not to be legally in the United States, I do not see why the courts may not, at the suit of the citizen, enforce their claims upon property as against officers of a state who may be judicially ascertained, in a suit against them, not to be in rightful possession for such state. Such relief would not conclude the rights of the state, but would leave to her the privilege of asserting her claim in any court of competent jurisdiction. I am authorized by Mr. Justice FIELD to say that he concurs in this opinion.

107.US.147

1. The township of Mlontclair in the county of Essex, New Jersey, had authority to issue bonds to be exchanged for bonds of the Mlontclair Railway Company. 2. The Constitution of New Jersey provides: " To avoid improper influences which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title." Held, 1. That this provision does not require the title of an act to set forth a detailed statement, or an index or abstract, of its contents; nor does it prevent uniting in the same act numerous provisions having one general object fairly indicated by its title. 2. That the powers, however varied and extended, which a township may exercise constitute but one object, which is fairly expressed in a title showing nothing more than the legislative purpose to establish such township. 3. The conflict between the Constitution and a statute must be palpable, to justify the judiciary in disregarding the latter upon the sole ground that it ciently expressed in the title. 4. The holder of the bonds is presumed to have acquired them in good faith and for value. But if, in a suit upon them, the defence be such as to require him to show that value was paid, it is not, in every case, essential to prove that he paid it; for his title will be sustained if any previous bolder gave value.

'Sec. 3. And be it enacted that the said commissioners, authorized by this act, may, in their discretion, dispose of such bonds, or any part thereof, to such persons or corporations, and upon such terms as they shall deem most advantageous for their said townships, towns, or cities, but not for less than par, and the money that shall be raised by any loan or sale of bonds shall be invested in the bonds of the said railway company for the purpose of building the railway thereof; and said money shall be applied and used in the construction of said railway, its buildings, equipments, and necessary appurtenances, and for no other purpose. The commissioners, respectively, in the corporate name of each of their said townships, towns, or cities, shall subscribe for and purchase bonds of said railway company to the amount that they severally may have borrowed as aforesaid.' After providing that the commissioners shall execute their official bonds, with security to be approved by the judge, (all of which was done in this case,) and that they shall be a board to act for their respective townships, towns, and cities, with power, by a majority, to do any business authorized by the act, the twelfth and fourteenth sections declare: 'Sec. 12. That all bonds issued in accordance with the provisions of this act shall be registered in the office of the county in which the township, town, or city so issuing is situated, and the words 'registered in the county clerk's office' shall be printed or written across the face of each bond, attested by the signature of the county clerk when so registered, and no bonds shall be valid unless so registered. 'Sec. 14. That in case any new township, town, or city shall have been created, or the boundaries of any township, town, or city shall have been enlarged on the routes of the said railway, or at the termini thereof, so that there is no assessment roll for the year 1867 for such township, town, or city so created or enlarged, the said commissioner for such new or enlarged township, town, or city shall cause to be prepared an assessment roll for the purposes of this act, by extracting from any assessment roll or rolls for said year all that relates to any assessment of persons or property in the territory embraced in the said new township, town, or city so enlarged or created, or in said enlargement.' On the fifteenth day of April, 1868, the legislature of New Jersey passed another act, the provisions of which are important. It is entitled 'An act to set off from the township of Bloomfield, in the county of Essex, a new township, to be called the township of Montclair.' The first section defines the boundary of the new township, and the second constitutes its inhabitants a body politic and corporate in law by the name of The inhabitants of the township of Montclair,' with all the rights, powers, privileges, and advantages, and subject to all the regulations, government, and liabilities to which the inhabitants of the other townships in said county of Essex are or may be entitled or subject by the laws of the state. The third section, after prescribing the time and place at which the first town-meeting of Montclair should be held, and that the voting thereat should be by ballot until otherwise determined by law, declares: 'That all the provisions and restrictions of an act entitled 'An act to authorize the inhabitants of the several townships of this state to vote by ballot at their town meetings,' approved March 22, 1860, and of the supplements thereto, shall apply to the inhabitants of the said township of Montclair, and all acts and parts of acts in force in the said township of Bloomfield at the time of the passage of this act are hereby extended to and shall be in force in the said township of Montclair; but the provisions of any act or acts from the operation of which the township of Bloomfield has, by any proviso or exception contained therein been specially excepted, shall apply to and be in force in said township of Montclair from and after the time this act shall go into effect, the same as if the township of Bloomfield had not been specially excepted therein.' Thos. N. McCarter and Wm. M. Evarts, for plaintiff in error. Rastus S. Ransom and Jno. F. Dillon, for defendant in error. HARLAN, J. In behalf of the township of Montclair it is contended that the bonds and coupons in suit were executed and issued without legislative authority, and consequently are not enforceable. This proposition being fundamental in the case will be first considered. It has been observed that the first section of the act of April 9, 1868—the one referred to in the bonds—expressly excepts from its operation the township of Bloomfield. The circuit court was of opinion, and so ruled, that Montclair, upon being set off from Bloomfield township and made a separate municipal corporation, with all the rights, powers, and privileges of other townships in the same county, was no longer embraced in the exception of Bloomfield township made by the act of April 9, 1868, but, as a distinct independent body politic and corporate, became entitled, in virtue of the fourteenth section of that act, (and without reference to the proviso in the third section of the act of April 15, 1868,) to take advantage of all the provisions of the original or bonding act. Some of the members of this court prefer not to rest the determination of the question of legislative authority upon that interpretation of the original act. But we are of opinion that the proviso of the third section of the act creating the township of Montclair—declaring in force, as to that township, 'the provisions of any act or acts from the operation of which the township of Bloomfield has by any proviso or exception contained therein been specially excepted'—must be construed as taking Montclair out of the exception in the first section of the act of April 9, 1868, and adding it to the class of townships which, by the act, were authorized to raise money upon bonds to be invested in bonds of the railway company. Thenceforward, the township of Bloomfield, within the meaning of the act of April 9, 1868, embraced only such territory and inhabitants as remained after Montclair township was set off as an independent municipality. The recital in the bonds that they were issued in pursuance of that act, must therefore be taken as referring to it as enlarged or extended by the act of April 15, 1868. It is the duty of the court to give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed. We should assume that the legislature was aware, when the act of April 15, 1868, was passed, that a previous statute had expressly excepted Bloomfield township from all of its provisions. When, therefore, they declared that the new township should come under the operation of any act from which Bloomfield had been specially excepted by any proviso thereof, the established canons of statutory construction require us to presume that the legislature understood the full legal effect of such a declaration. The purpose, manifestly, was to relieve the new township from the disabilities imposed by the bonding act upon the township of Bloomfield as then established. established. This would close the discussion of the question of legislative authority, but for another proposition which counsel have pressed with great earnestness. They insist that this construction of the act of April 15, 1868, brings it, or so much thereof as constitutes its third section, in conflict with section 7 of article 4 of the New Jersey constitution, which declares that 'to avoid improper influences which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title.' The argument is not simply that the authority given by the act of April 9, 1868, to issue township bonds in aid of the Montclair Railway Company (which authority we have seen is imported into the act of April 15, 1868,) is an object, distinct and separate from others embraced by the Montclair township act, but that such object is not expressed in the title of the latter act. The purpose of this constitutional provision was deciared by the supreme court of New Jersey, in State v. Town of Union, 4 Vroom, 351, to be 'to prevent surprise upon legislators by the passage of bills, the object of which is not indicated by their titles, and also to prevent the combination of two or more distinct and unconnected matters in the same bill.' Further, said the court: 'It is not intended to prohibit the uniting in one bill of any number of provisions having one general object fairly indicated by its title. The unity of the object must be sought in the end which the legislative act proposes to accomplish. The degree of particularity which must be used in the title of an act rests in legislative discretion, and is not defined by the constitution. There are many cases where the object might with great propriety be more specifically stated, yet the generality of the title will not be fatal to the act, if by fair intendment it can be connected with it.' The case in which these remarks occurred involved the constitutionality of an act, entitled 'An act to amend 'An act to incorporate the town of Union, in the township of Union, in the county of Hudson,' approved March 29, 1864.' The body of the act declared valid a certain ordinance passed by the town of Union, without the formalities required by its charter, but under which a sewer had been constructed. In response to the objection that the object of the act—the construction of sewers—was not expressed in its title, the court said: 'The validity of acts with general titles has been so long recognized by our courts that it cannot be questioned that under the title, 'An act to incorporate the town of Union,' a government for the town could be established, including taxation for its support, courts for the trial of offenders, authority for laying out streets, building sewers, and making assessments. Under any other rule it would be impossible to organize a city government without a large number of distinct acts. If, under that general title, the formalities for building a sewer and making assessments may be prescribed, there is no reason why a dispensation from the use of the required forms may not be granted by an act entitled 'An act to amend an act to incorporate the town of Union." 'If this objection,' continued the court, 'was sustained, it would annul a large portion of the legislation of this state.' The doctrines of that case were approved in Doyle v. City of Newark, 5 Vroom, 236. In the earlier case of Gifford v. New Jersey R. Co. 2 Stockt. 172, an act supplemental to a former act was sustained upon the ground that the objects of both acts 'were parts of the same enterprise, and cannot be said to have any improper relation to each other.' Our attention is called by counsel for the defendant to Rader v. Township of Union, 10 Vroom, 509, and Pa. R. Co. v. Nat. Ry. Co. 8 C. E. Green, 457. But these do not in the slightest degree impinge upon the doctrines of the other cases. Referring, in the Rader Case, to the constitutional provision under examination, Chief Justice BEASLEY observed that its purpose is plainly twofold: 'First, to secure a separate consideration for every subject presented for legislative action; second, to insure a conspicuous declaration of such purpose. By the former of these requirements, every subject is made to stand on its own merits, unaffected by 'improper influences,' which might result from connecting it with other measures having no proper relation to it; and, by the latter, a notice is provided, so that the public, or such part of it as may be interested, may receive a reasonable intimation of the matters under legislative consideration.' In the same case he said that the constitution required 'substantial unity in the statutable object.' We do not understand these remarks of the court as announcing any different rule from that established in the cases in 4 and 5 Vroom. What was said in 8 C. E. Green, is clearly in line with other cases. And the doctrines of the New Jersey court are in harmony with decisions of the highest courts of other states when construing similar provisions in the constitutions of their respective states. See authorities cited in Cooley, Const. Lim. 146, note 1. Upon the authority of these decisions, and upon the soundest principles of constitutional construction, we are of opinion that the objection taken to the act of April 15, 1868, as being (when construed as we have indicated) in conflict with the constitution of New Jersey, cannot be sustained. The powers which the township of Montclair is authorized to exert, however varied or extended, constitute, within the meaning of the constitution, one object, which is fairly expressed in a title showing the legislative purpose to establish a new or independent township. It is not intended, by the constitution of New Jersey, that the title to an act should embody a detailed statement, nor be an index or abstract of its contents. The one general object—the creation of an independent municipality—being expressed in the title, the act in question properly embraced all the means or instrumentalities to employed in accomplishing that object. As the state constitution has not indicated the degree of particularity necessary to express in its title the one object of an act, the courts should not embarrass legislation by technical interpretations based upon mere form or phraseology. The objections should be grave, and the conflict between the statute and the constitution palpable, before the judiciary should disregard a legislative enactment upon the sole ground that it embraced more than one object, or if but one object, that it was not sufficiently expressed by the title. The assignments of error, unusually large in number, raise other questions. Such of them as we deem necessary to examime relate to the rejection as well of evidence offered as of instructions asked in behalf of the township. The main provisions of the bonding act will be found in the statement which precedes this opinion. As preliminary to an issue of township, town, or city bonds, by such commissioners as might be appointed on the petition of freeholders, the statute requires the written consent of persons owning, or representing as agent or president, at least two-thirds of the real estate of the municipality,—the bonds so issued not, however, to exceed 20 per cent. of the value of its landed property, and the consent so obtained stating the amount to be raised, and that it is to be invested in the bonds of the railway company. The statute further provided, as we have seen, that the signatures of consenting freeholders should be proved by one or more of the commissioners; that the fact that the consenting freeholders owned or represented the requisite amount of landed property should be proved by the assessor, who was required to perform such service; and that the consent and affidavit should be filed in the office of the clerk of the county in which the municipality is situated, and a certified copy thereof in the office of the clerk of the township, town, or city,—the originals, or a certified copy thereof, to be received as evidence of the facts therein contained in any court of the state or before any judge or justice thereof. The declaration in each count, whether on bond or coupon, expressly avers that in pursuance of the statute such consents were obtained; also, that the commissioner, duly appointed and sworn, as directed by the statute, issued the bonds in suit; that thereafter, and before they respectively matured, a certain named bank became, for a valuable consideration, in public market paid, the holder and bearer thereof, and that thereafter, and before the commencement of suit, the plaintiff became for a valuable consideration by him paid to said bank, and still is, the holder and bearer thereof. The only plea in behalf of the township to the special counts on the bonds and coupons is non est factum; to the common count for interest, nil debit. At the trial the plaintiff introduced evidence tending to show that the commissioners were duly appointed in the mode prescribed by statute. If their due appointment was put in issue by the general plea of non est factum, if is sufficient to say that the question was properly submitted to the jury. The plaintiff also produced at the trial, from the county clerk's office, the original consents with the affidavits connected therewith, and also certified copies from the office of the township clerk. They show that the freeholders consented to an issue of bonds, to an amount not exceeding $200,000, under the act of April 9, 1868, to 'be exchanged for, or their proceeds invested in, the income bonds' of the railway company. Upon each is indorsed the affidavit of Van Giesen, assessor, showing that the consenting freeholders owned or represented at least two-thirds of the landed property of the township. These papers in form met all the requirements of the statute. Numerous offers to introduce evidence in behalf of the township were denied. They were made in every form which the ingenuity of able counsel could suggest. Without incumbering this opinion with a detailed statement of them, it is enough to say that the township was denied the privilege of proving that the consents did not, in fact, represent the required amount of landed property; that Van Giesen, the assessor, made his affidavit without having extracted from any assessment roll the taxable value of the real estate to enable him to determine whether the consents represented sufficient real estate; and that the commissioners acted on that affidavit before Van Giesen had taken the oath of office. Upon the occasion of these offers, or some of them, counsel for defendants, in response to inquiries by the court, disclaimed any ability to bring home to plaintiff knowledge of these departures from the requirements of the statute. Upon the same view of the law, as we suppose, counsel asked the court to give, but the court refused, the following instructions to the jury: 'If the evidence satisfies the jury that there were circumstances of fraud or illegality in the inception of the bonds, or in the circumstances under which they were issued and disposed of by the commissioners, then the plaintiff cannot recover on the bonds without some proof that he purchased them for value, or gave some consideration for them.' * * * 'That, by the issue presented by the pleadings in the case, the burden of showing that he was a purchaser for value, or claims title through such a purchaser, was on the plaintiff.' As to the last of these instructions, there is no ground whatever upon which it could stand. The pleadings did not, of themselves, impose upon plaintiff the necessity of showing either that he, or any prior holder of the bonds, was a purchaser for value. As holder he is presumed to have acquired them in good faith and for value. Goodman v. Simonds, 20 How. 366; Murray v. Lardner, 2 Wall. 121; Shaw v. Railroad Co. 101 U. S. 564; Swift v. Smith, 102 U. S. 444. The plea of non est factum did not put in issue the fact that he was the holder. Legislative authority for an issue of bonds being established by reference to the statute, and the bonds reciting that they were issued in pursuance of the statute, the utmost which plaintiff was bound to show to entitle him, prima facie, to judgment, was the due appointment of the commissioners and the execution by them, in fact, of the bonds. It was not necessary that he should, in the first instance, prove either that he paid value, or that the conditions preliminary to the exercise by the commissioners of the authority conferred by statute were, in fact, performed before the bonds were issued. The one was presumed from the possession of the bonds; and the other was established by the statute authorizing an issue of bonds, and by proof of the due appointment of the commissioners, and their execution of the bonds, with recitals of compliance with the statute. So we have often ruled in numerous cases with which the profession are familiar and which need not be cited. But the contention of counsel is that it was competent, under the plea of non est factum, to prove either fraud or illegality in the inception of the bonds, in order to remove the presumption of bona fide ownership for value which arises from the mere possession of the bonds, and thus compel plaintiff to show that he paid value for them. Consequently, it is argued, the first of the foregoing instructions should have been given. It is not necessary to extend this opinion by a review of the adjudications in the American and English courts to which our attention has been called, or to deduce therefrom a general rule to govern every case in which it may be claimed that the proof upon the part of a defendant, in a suit upon a negotiable security, requires the holder before he can recover to show that he paid value. Without entering upon a critical examination of the authorities upon this important question of commercial law, and assuming, for the purposes of this case merely, that the proof, of the exclusion of which the township complains, was competent evidence for some purposes under the plea of non est factum, we are of opinion that the instruction in question ought to have been refused. Its rejection was proper for the reason, if there were no other, that it required the jury, if they believed either fraud or illegality in the inception of the bonds to have been established, to find for the township, unless the plaintiff proved that he purchased for value or gave some consideration for them. Such is not the law; for, if any previous holder of the bonds in suit was a bona fide holder for value, the plaintiff, without showing that he had himself paid value, could avail himself of the position of such previous holder. In Byles, Bills, 119, 124, it is correctly said that 'if any intermediate holder between the defendant and the plaintiff gave value for the bill, that intervening consideration will sustain the plaintiff's title.' In Hunter v. Wilson, 19 L. J. (N. S.) the plea was that the bill of exchange was drawn by a named person, at the request and for the accommodation of the defendant, without any consideration or value whatever, and that it was indorsed by that person without any consideration or value given by the plaintiff for such indorsement either to the defendant of to said person, or to any other person whatsoever. It was held that the plea ought to have contained a statement equivalent to an allegation that none of the previous parties to the bill had given value for the indorsement. One of the judges remarked that 'some party to the bill may have given value for it, so as to vest a valid title in the plaintiff. We cannot tell through how many hands it may have passed.' It is not necessary in this case to hold that the plea in such a case should aver that no previous holder of a negotiable security paid value. But the case last cited is authority for the proposition that the present plaintiff may be protected by showing that some previous holder paid value. This question was directly adjudged in Com'rs v. Bolles, 94 U. S. 109. One of the issues there was whether the plaintiff was a bona fide holder of certain municipal bonds. After stating that the legal presumption was that they were, the court, speaking by Justice STRONG, said: 'But the plaintiffs are not forced to rest upon mere presumption to support their claim to be considered as having the rights of purchasers without notice of any defense. They can call to their aid the fact that their predecessors in ownership were such purchasers. To the rights of those predecessors they have succeeded. Certainly the railroad company paid for the bonds and coupons by paying an equal amount of their stock, which the county now holds; and nothing in the special facts found show that the company knew of any irregularity or fraud in their issue.' 'And still more: the contractor for building the railroad received the bonds from the county in payment for his work, either in whole or in part, after his work had been completed. There is no pretense that he had notice of anything that should have made him doubt their validity. Why was he not a bona fide purchaser for value? The law is undoubted, that every person succeeding him in the ownership of the bonds is entitled to stand upon his rights.' When the instruction in question was asked the proof was that the bonds had been issued by the commissioners, and exchanged with the railroad company for a like amount of the company's income bonds. That exchange was a substantial compliance with the statute. It was made under a contemporaneous agreement between the commissioners, the railway company and certain trustees, mutually selected, whereby the bonds passed, upon the exchange, under the control of those trustees, and were deposited in the Union Trust Company, to be surrendered—$10,000 at a time—only as the work of constructing the railroad progressed, to the company or the contractor on their order. The receipt of the trust company shows that it agreed to deliver them to the contractor or his agents or assigns, on the joint order of the trustees or any two of them. And it was proven that the bonds were delivered to the contractor or upon his order between May 10, 1870, and August 4, 1871. The road was constructed as contemplated and the income bonds of the company remained in the hands of the commissioners or of some of them. Whether those bonds ultimately proved to be of any value is of no consequence as between the township and the plaintiff. It thus appears that when the court was asked to give an instruction upon the basis that plaintiff could not recover, unless it was proven that he paid value for the bonds, it was established beyond question that the bonds had previously passed into the hands, or become pledged for the benefit, of the contractor who built the road. He acquired an interest or a lien on the bonds, to secure payment of the amount due him for his work and labor. He therefore became a holder for value in the sense that he paid real in contradistinction from apparent value, without notice of any fraud or illegality affecting the bonds. Story, Notes, § 195; Railroad Co. v. National Bank, 102 U. S. 14; Byles, Bills, 117. No evidence was introduced or offered which in any degree impeached his good faith, or proved knowledge on his part that the preliminary conditions prescribed by statute had not been fully performed. The character of the bonds as negotiable securities, free from defenses which might have been available as between the original partles, was established by their being pledged for the benefit of the contractor. So that, even if there was fraud or illegality in the inception of the bonds, (apart from such illegality as would have made the bonds absolutely void by whomsoever held,) a defense upon that ground would not have been good against the contractor, and consequently is not available against the plaintiff. The latter, in virtue of the new and independent title derived from or traced to a prior bona fide holder for value, could stand upon the rights of such holder. In any view of the case, no error was committed to the prejudice of the township, in excluding any of the evidence offered or in refusing any of the instructions asked in its behalf. Other questions in the case we pass by, as not necessary to be examined. We have considered all that seemed to affect the substantial rights of the parties. The judgment is affirmed.

108.US.132

By a written agreement between S. and E., S. agreed to convey land to E. "subject to" an incumbrance on it of $9,000, and E. agreed to pay to S. $15,000, by conveying to him land, some of it "subject to" an incumbrance. Without any further bargain, S. delivered to E. a deed, conveying the land "subject to" the incumbrance, and also containing a clause stating that E. assumes and agrees to pay the debt secured by the incumbrance, as a part of the consideration of the conveyance. E., being ill, did not read the clause in the deed respecting the assumption of the debt, but discovered it afterwards, and promptly brought this suit to have the deed reformed. He had made two payments of interest on the incumbrance. In the negotiations prior to the agreement, S., through his agent, had solicited E. to assume and agree to pay the incumbrance, but E. refused. S. understood the difference in meaning between the two forms of expression. D., the owner of the incumbrance, was no party to the transaction, and had done nothing in reliance on the deed. He was, on his own application, made a party to the suit, and also filed a cross-bill for a foreclosure of the incumbrance, and the inforcement of a personal liability against S. and E. for the debt. The circuit court made a decree dismissing the bill in the original suit, and adjudging that B. had agreed with S. to pay the amount due on the incumbrance ; that S. and E., or one of them, should pay the debt due to D., and, in default thereof, the land should be sold, and the deficiency reported ; and that, if S. should pay any part of the debt, he might apply for an order requiring E. to repay the amount to him. On an appeal by E. : Held, 1. The decree was a final decree, as to E. 2. The amount involved in the original suit was the $9,000. 3. The agreement created no liability on the part of E. to pay the debt to D. 4. There was a departure in the deed, through mutual mistake, from the terms of the actual agreement. 5. Under the special circumstances of the case E. had a right to presume that the deed would conform to the written agreement, and was not guilty of such negligence or laches in not observing the provisions of the deed as should preclude him from relief, nor was he guilty of any laches in seeking a remedy. 6. The payment by E. of interest on the incumbrance was not inconsistent with his not having assumed the payment of the debt. 7. E. is entitled to have the deed reformed. The case of Snell v. Insurance Co., 98 U. S.8 5, cited and applied.

It is objected by the appellee, Dickey, that there is nothing in the record to show that the amount in controversy exceeds $5,000; and that the decree, so far as Elliott is concerned, is not a final one. It is urged that the provision of the decree is that if the amount specified is not paid to Dickey within one day, the premises shall be sold, and, if the proceeds of sale are insufficient, the master shall report the amount of the deficiency; that this is not a deficiency decree against Elliott; that it does not appear that it will ever be necessary to enter a deficiency decree against any one; that, on the decree, as it stands, no execution can be issued against any one; that all the evidence goes to show that the deficiency decree will not exceed $2,000; and that the decree is merely interlocutory as to Elliott, because, until a sale is made, there can be no cause of complaint on the part of Elliott. The answer to this objection is that the decree dismisses the original bill, and adjudges that Elliott agreed with Sackett, for a valuable and sufficient consideration, to pay the amount due on the incumbrance. The amount involved in the original suit is the entire amount of the incumbrance, which Elliott is made by the deed to him to agree to pay, and the bill seeks relief from liability for that amount, by striking out the clause from the deed. The decree denies that relief. If that relief was wrongly denied, all relief against Elliott UNDER THE CROSS-BILL NECESSARILY FALLS, AS THE Only liability from Elliott to Dickey arises from that clause in the deed. On the merits, we are of opinion that Elliott is entitled to the relief he asks by his original bill. The terms of the written agreement between Sackett and Elliott are very clear, and show that the parties were merely making an exchange of land. Sackett agrees to convey to Elliott the Calumet-avenue property, subject to the $9,000 incumbrance, and to assign an insurance policy, and to pay $50. Elliott agrees to convey to Sackett three lots subject to a specific incumbrance, and two other pieces of property clear of incumbrance. It is true that Elliott agrees to pay to Sackett $15,000, but the agreement expressly states that that sum is to be paid 'in the manner following,' which is by conveying the land described. The land to be conveyed to Sackett is apparently valued by the agreement, for the purposes of the transaction, at $15,000. Nothing is said about deducting the $9,000 from the price of the property to be conveyed to Elliott, nor is any sum named as the purchase money of that property. An agreement merely to take land, subject to a specified incumbrance, is not an agreement to assume and pay the incumbrance. The grantee of an equity of redemption, without words in the grant importing in some form that he assumes the payment of a mortgage, does not bind himself personally to pay the debt. There must be words importing that he will pay the debt, to make him personally liable. The language of the agreement in the present case does not amount to such an undertaking on the part of Elliott. It is only a statement that the conveyance is to be subject to the incumbrance, and creates no personal liability in the grantee. Such is the law in Illinois, where this land is situated, (Comstock v. Hitt, 37 Ill. 542; Fowler v. Fay, 62 Ill. 375,) as well as the law in other states, (Belmont v. Coman, 22 N. Y. 438; Fiske v. Tolman, 124 Mass. 254.) Under the written agreement, therefore, it is plain that Elliott assumed no personal liability. Both parties executed this agreement and are to be held to have understood it in that sense. Sackett, in his answer, does not deny the allegation of the original bill, that the agreement between the parties was that neither Sackett nor Elliott should assume or agree to pay outstanding incumbrances on the respective parcels of land, and that that appears by the written agreement. But the answer, while admitting that Sackett entered into an agreement in writing to convey the premises in a certain manner and on certain conditions, and referring to such agreement for certainty, sets up that, after the written agreement was made, the parties came to an understanding that Elliott would accept a deed whereby he should assume and agree to pay the $9,000 incumbrance, and that the deed given 'contained that provision accordingly.' There is no evidence to support this allegation. Sackett testifies that he never had any conversation with Elliott in regard to his assuming liability for the mortgage, but that they met together and the deeds to each other were passed. Sackett had employed Hill as his agent to dispose of the Calumet-avenue property. Elliott testifies that Hill offered him the property and wanted him to assume the incumbrance, but he refused, and that finally Hill brought in the agreement which was signed by both parties. Hill testifies to the same effect. Elliott says that when Sackett gave him the deed in Hill's office he was unwell; that he did not read that part of the deed which states that he is to assume and pay the incumbrance, but only read the prior part, which states that the conveyance is made subject to the incumbrance; and that he discovered the mistake in the deed a short time before he commenced this suit. The actual contract of the parties, as understood by both of them, is shown by the written agreement. Nothing was agreed upon to vary that. Sackett, as he shows by his testimony, knew the difference as to liability which the difference in the language would make, and knew what the language of the written agreement was, and must be held to have understood it to mean what it does mean, and to have known that Elliott understood it in the same sense. So, in the departure from it in the deed, there was a mutual mistake, it not being shown, as set up in the answer of Sackett, that there was an intention, fully and fairly understood by both parties, that in the deed Elliott should assume and agree to pay the incumbrance. Under all the circumstances proved in this case, (and every case of the kind must depend very largely on its special circumstances,) Elliott had a right to presume that the deed would conform to the written agreement, and was not guilty of such negligence or laches, in not observing the provisions of the deed, as should preclude him from relief. Neither Dickey nor the trustee was a party or a privy to the transaction between Sackett and Elliott, nor was the trust deed taken, or the debt created or extended, or anything else done by Dickey or his trustee, in reliance on any assumption of the debt by Elliott. As respects the trust deed, the parties to it and to the debt it secured occupied the same position when this suit was brought as when the deed to Elliott was delivered, no new rights having been acquired in reliance on that deed, and none which existed when it was delivered being sought to be impaired by the relief asked by Elliott. Elliott does not seek to interfere with the property he conveyed to Sackett. No circumstances exist on which laches can be predicated on the part of Elliott as to seeking a remedy. The fact that Flliott made two payments of the interest on the incumbrance is not inconsistent with his not having assumed the payment of the incumbrance. As owner of the property subject to the incumbrance, and desirous of retaining it so long as there was any value in the equity of redemption, he would naturally pay the interest to save a foreclosure: The principles applicable to a case like the present are fully set forth in the opinion of this court, delivered by Mr. Justice HARLAN, in Snell v. Ins. Co. 98 U. S. 85, and the leading authorities on the subject are there collected. Within those principles this is a case where, in the preparation of the deed to Elliott, there was, by mutual mistake, a failure to embody in the deed the actual agreement of the parties as evidenced by the prior written agreement. The meaning of that prior agreement is clear, and nothing occurred between the parties, after it was signed and delivered, to vary its terms, except the mere fact of the delivery of the deed, the terms of which are complained of and sought to be reformed. The deed did not effect what both of the parties intended by the actual contract which they made, and the case is one for the interposition of a court of equity. The decree of the circuit court is reversed, with costs, so far as it dismisses the original bill, and so far as it adjudges that Dickey has any equities as against Elliott, and so far as it adjudges that Elliott assumed and agreed to pay the amount due on the mortgage to Dickey, and so far as it adjudges that Elliott shall pay to Dickey the amount found due to him and the costs of the suit, and so far as it provides for an application by Sackett for an order that Elliott repay to him any sum which he may pay on the debt due to Dickey; and the cause is remanded to the circuit court, with directions to enter a decree in the original suit granting the prayer of the bill, with costs, and for such further proceedings in the original and cross suits as may not be inconsistent with this opinion.

107.US.676

At the time of borrowing money from a national bank, A. delivered to it, as collateral security for the debt thereby created, the certificate of his shares of its capital stock. On his failure to pay at the stipulated time, the bank sold the stock at its full market value, and applied the entire proceeds to his credit. On the ground that sect. 5201 of the Revised Statutes prohibited a loan by the bank "on the security of the shares of its own capital stock," A. brought an action for the proceeds. Held, that he is not entitled to recover.

Section 5201 of the Revised Statutes declares that 'no association shall make any loan or discount on the security of the shares of its own capital stock, nor be the purchaser or holder of any such shares, unless such security or purchase shall be necessary to prevent loss upon a debt previously contracted in good faith, and stock so purchased or acquired shall, within six months from the time of its purchase, be sold or disposed of at public or private sale; or, in default thereof, a receiver may be appointed to close up the business of the association.' While this section in terms prohibits a banking association from making a loan upon the security of shares of its own stock, it imposes no penalty, either upon the bank or borrower, if a loan upon such security be made. If, therefore, the prohibition can be urged against the validity of the transaction by any one except the government, it can only be done before the contract is executed, while the security is still subsisting in the hands of the bank. It can then, if at all, be invoked to restrain or defeat the enforcement of the security. When the contract has been executed, the security sold, and the proceeds applied to the payment of the debt, the courts will not interfere with the matter. Both bank and borrower are in such case equally the subjects of legal censure, and they will be left by the courts where they have placed themselves. There is another view of this case. The deceased authorized the bank, in a certain contingency, to sell his shares. Supposing it was unlawful for the bank to take those shares as security for a loan, it was not unlawful to authorize the bank to sell them when the contingency occurred. The shares being sold pursuant to the authority, the proceeds would be in the bank as his property. Ths administrators, indeed, affirm the validity of that sale by suing for the proceeds. As against the deceased, however, the money loaned was an offset to the proceeds. In either view the administrators cannot recover. The judgment of the court, therefore, must be reversed and the cause remanded for a new trial; and it is so ordered.

107.US.1

The court denies an application for rehearing in this case, decided at the present term, 106 U. S. 327.

When this case was argued no special claim was made for a judgment based on the currency value of the pounds sterling at the time the taxes sued for ought to have been paid, and for that reason a judgment was ordered for the present value of pounds sterling in lawful money. We are now asked to rehear the case for the purpose of considering that question. The company was liable for taxes of 5 per cent. on the amounts of interest paid. As the payments were all made in pounds sterling, the computations must necessarily be on that basis. The act of July 13, 1866, chapter 184, § 9, (14 St. 138,) made it the duty of the company to return a list of the prescribed taxes to the assessor. In making up such lists the law required (page 147) that it should be declared whether the amounts were stated according to their values in legal-tender currency or in coined money. When stated in coined money, it was the duty of the assessor to reduce them to their equivalent in legal-tender currency, according to the value of coined money in currency for the time covered by the returns. All lists furnished the collectors by the assessors were required to 'contain the several amounts of taxes assessed, estimated, or valued in legal-tender currency only.' In Dollar Savings Bank v. U. S. 19 Wall. 240, it was decided that a suit at law might be maintained for the recovery of a tax on interest paid, even though no list had been returned and to assessment made, and in the opinion it was said: 'No other assessment than that made by the statute was necessary to determine the extent of the bank's liability. An assessment is only determining the value of the thing taxed, and the amount of tax required of each individual. It might be made by the designated officers or by the law itself. In the present case the statute required every savings bank to pay a tax of 5 per cent. on all undistributed earnings made or added during the year to their contingent funds. There was no occasion or room for any other assessment. This was a charge of a certain sum upon the bank, and without more it made the bank a debtor.' In the present case no list was returned by the company and no assessment made by the assessor. Consequently no list was ever furnished the collector, and the amount to be paid in currency was never officially ascertained. This suit is, therefore, for the debt which the company owes, to-wit, 5 per cent. of the pounds sterling it has paid as interest on its bonds. If the debt had been paid at the time it was due, the officers chargeable with the collection could have accepted nothing but legal-tender currency, and to an amount equivalent to the value of the coin which was owing. In other words, the debt was in the nature of an obligation to pay in coin, but which the government would not receive in anything but legal-tender currency of equal value with the coin. This is a suit for the recovery of that debt as a debt. If there were now any difference in value between coin and currency it would have been proper to render the judgment for the coin or its equivalent in currency, (Gregory v. Morris, 96 U. S. 624,) but as there is no such difference a general judgment for the amount due is all that is necessary. The amount of the debt was always a fixed sum in pounds sterling. The provision for the estimation of the value of this debt in legal-tender currency was, in our opinion, a regulation of the mode of collection, and not a change in the amount of the obligation. As promptness was required in the payment of taxes, and the amount to be paid in currency would not ordinarily exceed the value of the coin which was due, it was thought proper by the government to require its officers to make collections in currency. For that reason it was provided that in making out the tax-lists the amount necessary to discharge coin taxes in currency should be set down, rather than the amount of the coin that was owing. In this way there would be less opportunity for confusion in the accounts between the government and its officers. As upon this application we have had the benefit of a printed brief by the solicitor general on behalf of the United States, and upon full consideration are satisfied that the judgment as it stands is right, notwithstanding the claim that is now made, the application for a rehearing is denied.

107.US.671

An indictment for perjury against an officer of a national bank, for a wilfully false declaration or statement in a report made under sect. 5211 of the Revised Statutes is bad, if, prior to the passage of the act of Feb. 26, 1881, c. 82, his oath verifying the report was taken before a notary public appointed by a State, as such a notary had at that time no authority under a law of the United States to administer the oath.

This case comes before us on a certificate of division as to certain questions of law arising in a criminal prosecution against Edward P. Curtis, based upon sections 5211 and 5392 of the Revised Statutes of the United States. The first of those sections provides that every national banking association 'shall make to the comptroller of the currency not less than five reports during each year, according to the form which may be prescribed by him, verified by the oath or affirmation of the president or cashier of such association, and attested by the signature of at least three of the directors. Each such report shall exhibit in detail, and under appropriate heads, the resources and liabilities of the association at the close of business on any past day by him specified; and shall be transmitted to the comptroller within five days after the receipt of a request or requisition therefor from him, and in the same form in which it is made to the comptroller shall be published in a newspaper where such association is established,' etc. Section 5392 provides 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, willfully and contrary to such oath states 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 $2,000, 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.' The willfully false declarations or statements which the defendant is charged to have made are contained in several written reports transmitted to the comptroller of currency by the National Bank of the State of Missouri, in St. Louis, in pursuance of section 5211, and to the truth of which declarations or statements Curtis, as cashier of that bank, made oath before a notary public within and for the county of St. Louis, in that state. These declarations or statements relate to the condition of the bank as to loans, discounts, checks, cash items, overdrafts, individual deposits subject to checks, surplus fund, currency on deposit, and money due from that association to other national banks. The indictment contains five counts, which, as respects any matter now to be determined, do not substantially differ, except as to the several dates when the alleged oaths were taken. Those dates were July 18 and October 10, 1876, and January 15, January 26, and April 5, 1877. The controlling question is as to the authority of the notary to administer the oaths, upon the falsity of which the indictment is laid. It is fundamental in the law of criminal procedure that an oath before one who has no legal authority to administer oaths of a public nature, or before one who, although authorized to administer some kind of oaths, but not the one which is brought in question, cannot amount to perjury at common law, or subject the party taking it to prosecution for the statutory offense of willfully false swearing. 1 Hawkins, P. C., book 1, cc. 69, 321, § 4, p. 430, (8th Ed. by Curwood;) Roscoe, Crim. Ev. (7th Amer. Ed.) 817; 2 Whart. Crim. Law, § 1256; 2 Archb. Crim. Pr. & Pl. (8th Ed.) 1722. If, therefore, Curtis, at the time the several oaths alleged to be false were taken, was not authorized by the laws of the United States to take them before a notary public, he cannot be proceeded against under section 5392. The statute, in conformity with an established rule of criminal law, expressly declares that the oath must be taken before some 'competent tribunal, officer, or person.' This does not necessarily mean that the tribunal by which the oath is administered shall have been created by the government which required it to be taken, nor that the officer who administers it shall be an officer of that government. But the statute does mean that the oath must be permitted or required, by at least the laws of the United States, and be administered by some tribunal, officer, or person authorized by such laws to administer oaths in respect of the particular matters to which it relates. So that the underlying question is whether the notary public, whose commission is from the state, was, at the respective dates of the oaths taken by Curtis, authorized by the laws of the United States to administer such oaths. This question we are constrained to answer in the negative. We are not aware of any act of congress which gave such authority to notaries public in the different states at the several dates given in the indictment. The assistant attorney general insists that such authority may be found in section 1778 of the Revised Statutes, which declares: 'In all cases in which, under the laws of the United States, oaths or acknowledgments may now be taken or made before any justice of the peace of any state or territory, or in the District of Columbia, they may also be taken or made by or before any notary public duly appointed in any state, district, or territory, or any of the commissioners of the circuit courts, and, when certified under the hand and official seal of such notary or commissioner, shall have the same force and effect as if taken or made by or before such justice of the peace.' The authority of the notary to administer these oaths to Curtis cannot be derived from that section, unless, at the dates in question, they could, under the laws of the United States, have been taken before justices of the peace in Missouri. But the latter officers had no such authority by any federal statute to which our attention has been called, or which we are able to find. Section 1778, so far as notaries public are concerned, embodies the substance of similar provisions in the acts of September 16, 1850, (9 St. 458,) July 29, 1854, (10 St. p. 315, § 1,) and June 22, 1874, (18 St. p. 186, § 20.) But nothing in these acts, even if they remained in force after the adoption of the Revised Statutes, supports the authority exercised by the notary public who administered these oaths to defendant. Counsel for the United States further insists that a proper construction of section 1778 will authorize a notary public in any state to administer oaths to officers of national banking associations, when making reports to the comptroller of the currency, if justices of the peace may lawfully do so in this district. But in our judgment no such interpretation of that provision is admissible. What congress intended, by that section, was to give notaries public in their respective states the same authority, in the administration of oaths, as are given, under the laws of the United States, to justices of the peace in the same states; and to notaries public in this district the same authority, in administering oaths, which, under the laws of the United States, might be exercised by justices of the peace in this district. We have seen, however, that justices of the peace, in the several states, had not been given such authority by any provision in the Revised Statutes, or by any act of congress prior to their adoption. Nor can any support for the indictment be derived from the act of August 15, 1876, (19 St. 206,) which declares 'that notaries public of the several states, territories, and the District of Columbia, be, and they are hereby, authorized to take depositions, and do all other acts in relation to taking testimony to be used in the courts of the United States, take acknowledgments and affidavits, in the same manner and with the same effect as commissioners of the United States circuit courts may now lawfully take or do.' The power of commissioners of the circuit courts did not, at the passage of that act, extend to the taking of oaths to reports by officers of national banks. They could take affidavits when required or allowed in any civil cause in a circuit or district court; Rev. St. § 945; Act of February 20, 1812, (2 St. p. 679, § 1;) Act of March 1, 1817, (3 St. 350;) or administer oaths where, in the same state, under the laws of the United States, oaths, in like cases, could be administered by justices of the peace; Rev. St. § 1778; or they could take evidence, affidavits, and proof of debts in proceedings in bankruptcy; Rev. St. §§ 5003, 5076; Acts of March 2, 1867, (14 St. 527,) July 27, 1868, (15 St. p. 228, § 3,) and June 22, 1874, (18 St. p. 186, § 20.) But the authority of commissioners did not extend to such oaths as were administered to Curtis. Our attention is called by counsel for the government to U. S. v. Bailey, 9 Pet. 238. That case, it is claimed, furnishes ample ground for an implication that the notary public who administered the oath in this case was fully empowered to do so. We do not so interpret that decision. That was an indictment for false swearing. It was based upon an act of congress which provided that if any person shall swear or affirm falsely touching the expenditure of public money, or in support of any claim against the United States, he should, upon conviction, suffer as for willful, corrupt perjury. The alleged false oath was administered before a justice of the peace for the commonwealth of Kentucky. It was admitted that there was no statute of the United States expressly empowering a justice of the peace to administer the oath taken by Bailey. But the authority of that officer was sustained upon the ground that the secretary of the treasury had previously, and as incident to his duty and authority under an act of congress, established a regulation permitting affidavits in support of claims against the United States to be made before justices of the peace. Except for that regulation the court, it is manifest, would not have sustained the indictment in Bailey's Case. The conclusion, therefore, is not to be avoided, and it will accordingly be certified to the court below, that the alleged false oaths of the defendant were not taken before an officer competent, at the time, under the laws, of the United States, to administer them. The absence of such authority in notaries public seems to have been recognized by congress when it passed the act of February 26, 1881, (21 St. 352,) declaring 'that the oath or affirmation required by section 5211 of the Revised Statutes, verifying the returns made by national banks to the comptroller of the currency, when taken before a notary public properly authorized and commissioned by the state in which such notary resides and the bank is located, or any other officer having an official seal, authorized in such state to administer oaths, shall be a sufficient verification, as contemplated by said section 5211: provided, that the officer administering the oath is not an officer of the bank.' What has been said renders it unnecessary to consider any other question of law certified by the judges of the circuit court.

106.US.546

1. Judicial notice is taken of the seal of a notary public, and such seal, impressed upon either the paper or the wax thereunto attached, entitles his certificate of protest to full faith and credit. So held, where, in an action against the drawer of a foreign bill of exchange payable in Norway, such a certificate made in that country was, when put in evidence by the payee, accepted as proof of the presentment and non-payment of the bill. 2. The question as to whether the presentment was made in due time is determined by the law of the place where the bill is payable. 3. The deposition of a lawyer of Norway, to the effect that the holder of such a bill payable there at sight is allowed a year after its date within which to present it for payment, was, by the court below, properly admitted under the statute of AMinnesota, which provides that the existence, tenor, and effect of all foreign laws may be proved by parol evidence, but that the court may, in its discretion, when the law in question is contained in a written statute, reject such evidence, unless it be accompanied by a copy thereof.

'Formerly wax was the most convenient and the only material used to receive and retain the impression of a seal. Hence it was said: Sigillum est cera impressa; quia cera, sine impressione non est sigillum. But this is not an allegation that an impression without wax is not a seal, and for this reason courts have held that an impression made on wafers or other adhesive substances capable of receiving an impression, will come within the definition of 'cera impressa.' If, then, wax be construed to be merely a general term, including within it any substance capable of receiving and retaining the impression of a seal, we cannot perceive why paper, if it have that capacity, should not as well be included in the category. The simple and powerful machine, now used to impress public seals, does not require any soft or adhesive substance to receive or retain their impression. The impression made by such a power on paper is as well defined, as durable, and less likely to be destroyed or defaced by vermin, accident, or intention than that made on wax. It is the seal which authenticates, and not the substance on which it is impressed; and where the court can recognize its identity, they should not be called upon to analyze the material which exhibits it.' Here there is no difficulty in identifying the seal. The impression, which is circular in form, has within its rim the words, 'Notarial Seal, Christiania.' Besides, the court will take judicial notice of the seals of notaries public, for they are officers recognized by the commercial law of the world. We thus recognize the seal to the document in question as that of the notary in Norway, and as such authenticating the certificate of protest and entitling it to full faith and credit. Greenl. Ev. § 5; Story, Bills, § 277; Townsley v. Sumrall, 2 Pet. 179; Chanoine v. Fowler, 3 Wend. 173; Carter v. Burley, 9 N. H. 559, 568; Holliday v. McDougal, 20 Wend. 81. The certificate being admitted, proved the presentation of the bill to the bank on the twelfth of April, 1870, and its non-payment. That this presentation was made within the period allowed by the law of Norway appears from the deposition of a lawyer of that country, taken under a commission from the court. That law allowed a year after the issue of the bill for its presentation; and on the question of timely presentation the law of the place where a foreign bill of exchange is payable governs, and not the law of the place where it is drawn. In giving a bill upon a person in a foreign country, the drawer is deemed to act with reference to the law of that country, and to accept such conditions as it provides with respect to the presentment of the bill for acceptance and payment. Thus, where days of grace on bills are different in the two countries, the rule of the place of payment must be followed. In England and the United States three days of grace are usually allowed; in France there are none, and in some places the number of days varies from three to thirty. Whatever is required by law to be done at the place upon which the bill is drawn, to constitute a sufficient presentment either in time or manner, must be done according to that law; and whatever time is permitted within which the presentment may be made by that law, the holder may take without losing his rights upon the drawer, in case the bill is not paid. So, also, if the bill be dishonored, the protest by the notary must be made according to the laws of the place. It sometimes happens that the several parties to a bill, as drawers or indorsers, reside in different countries, and much embarrassment might arise in such cases if the protest was required to conform to the laws of each of the countries. One protest is sufficient, and that must be in accordance with the laws of the place where the bill is payable. In this case, the bill having been protested, the drawers were notified of its dishonor by letter from the payee, received by them on the fifteenth of May following, and also by personal delivery at about the same time of the original certificate of the protest, with a translation of it into English, to one of the drawers by an agent of the payee, to whom they were transmitted for that purpose. No question is made that this notice was not sufficient to charge the drawers. The testimony of the lawyer of Norway as to the law of that country was admissible under the statute of Minnesota, which provides that 'the existence and the tenor or effect of all foreign laws may be proved as facts by parol evidence, but if it appears that the law in question is contained in a written statute or code, the court may, in its discretion, reject any evidence of such law that is not accompanied by a copy thereof.' The general rule as to the proof of foreign laws is that the law which is written, that is, statute law, must be proved by a copy properly authenticated; and that the unwritten law must be proved by the testimony of experts, that is, by those acquainted with the law. Ennis v. Smith, 14 How. 426. But this rule may be varied by statute, and that of Minnesota leaves it to the discretion of the judge to require the production of a copy of the written law when the fact appears that the law in question is in writing. The discretion of the judge here was not improperly exercised, even if in such case his action would be the subject of review, as contended by counsel. The admission of the payee that he had been negligent in presenting the bill was properly excluded. His negligence in that respect could not have affected his legal rights, if in point of fact the bill was presented within the time allowed by the laws of Norway. We have thus far assumed that the drawers were entitled to notice of the presentation and non-payment of the bill. But it may be doubted whether such was the fact. They had no funds with the bank in Norway when the bill was drawn or at any other time, and they relied for its payment upon the advices of third parties. Although such third parties had funds at the bank after the bill had been received by the payee in Norway, there is no evidence that they ever advised the bank to pay the bill out of such funds. It is found by the court that the bank never set apart any portion of them to meet the bill. The cable dispatch of the drawers, of which the letter of February 15th speaks, if it ever reached the bank, does not appear to have induced it to give them any credit. In the most favorable view, therefore, which could be taken of the position of the drawers, we see nothing which relieves them from liability. The judgment is, therefore, affirmed.

109.US.139

The statute imposing duties divides foreignwool into three classes, and enacts, among other things, that the duty on wool of the first class, which shall be imported washed, shall be twice the amount of the duty to which it would be subjected if imported unwashed; and further, that wools of that class shall pay a specific duty per pound, and an ad valorem duty in addition. BHeld, that the specific duty by weight is to be calculated on the same number of pounds in each case, and is to be twice the amount for washed wool that it is for unwashed; and that the ad valorem duty on washed wool is to be twice the ad valorem duty op the same number of pounds of unwashed wool.

The construction of the statute, and the rule of computation adopted by the collector, proceeds upon the supposition that the rate of duty to be charged and collected upon washed wool is to be double that charged and collected upon the same weight and value of unwashed wool. Hence, because 3,294 pounds of unwashed wool would be chargeable with a duty of 10 cents per pound, and 11 per cent. of its appraised value as unwashed wool, it is found that the same weight of washed wool would be chargeable with 20 cents per pound, and 22 per cent. of its appraised value as washed wool. The error in this calculation clearly is in assuming that the same number of pounds of unwashed wool would be worth as much as washed wool; a supposition which is inconsistent with the fact, as admitted, and with the evident meaning of the law. The language of the act of congress is too plain to admit of doubt. It declares that the duty upon a given quantity of washed wool shall be twice the amount of duty 'to which it would be subjected if imported unwashed.' By the terms of the comparison the weight is supposed to be the same in both cases—in the case, as actually presented, a quantity of wool weighing 3,294 pounds. Hence the duty, so far as determined by weight, is calculated upon the same number of pounds, being 11 cents per pound for the unwashed wool and 22 cents per pound for the washed wool. But when the ad valorem duty is to be determined, the relative values necessarity determine its amount; and as 3,294 pounds of unwashed wool is to be appraised at $813.50, while the same weight of washed wool would be twice that sum, or $1,627, it follows that the duty on the latter is to be double that which the law imposes upon the former, namely, 22 per cent. of $813.50, which is equal to $178.97, and not 22 per cent. on $1,627, equal to $357.94, as charged by the collector. If the rule adopted by him should prevail, the amount of the ad valorem duty collected upon equal weights of unwashed and of washed wool would be four times as great upon the latter as upon the former, for not only is the rate of duty doubled, but it is assessed upon double the value of the unwashed wool. But the statute expressly limits the duty in the case of washed wool to double the amount to which it would be subjected if imported unwashed. It is admitted in argument that the letter of the law justifies, if it does not require, this conclusion; but it is urged that the meaning of the statute requires the construction which would impose rates of duty upon washed wool double those imposed upon unwashed, calculated upon the weight and value of each, separately considered. And this contention is maintained upon the argument that the contrary reading of the statute implies that congress has made the appraised value of wool in its unwashed state the standard for determining the amount of ad valorem duty to be collected upon washed wool, which, it is insisted upon the argument, ad inconvenienti, is not admissible. But this is not by implication merely, but expressly what the act declares; and any fancied or real objections to such a standard cannot affect the obvious meaning of the law. It is obvious, however, that the natural division of wools into the grades unwashed, washed, and scoured, carried into the act as the ground of difference in the amount of duties to be assessed accordingly, fully explains the intention of congress to tax the wool itself uniformly by varying the amount of duty according to the degree to which a given quantity has been freed, by processes of cleansing, from the dirt and foreign matter with which, in its unwashed state, it is usually found. There is no error in the record, and the judgment is affirmed.

110.US.633

When a defendant in a suit pending in a State court pleads a provision of the State constitution as a defence, a judgment there overruling the plea presents no federal question to give jurisdiction to this court. Congress has the constitutional power to prescribe the law of limitations for suits which may by law be removed into the courts of the United States ; and when Congress has exercised that power it is binding upon State courts as well as uponFederal courts. A rn on v. Mu tphy, 109 U. S. 238, approved. A suit by a lessor to recover of a lessee rents which, during the rebellion, by order of the commanding general in the department where the property was situated, had been paid to the military authorities and appropriated to the use of the United States, is an action subject to the limitations prescribed by the Act of March 3d, 1863, 12 Stat. 755, and May 11th, 1866,14 Stat. 46, for the commencement of suits for seizures made during the rebellion by virtue or under color of authority derived from or exercised under the President or under any act of Congress. Harrison v. Xfyer, 92 U. S. 111, cited and approved. In a plea setting up the defence of the limitations prescribed by the statutes of March 3d, 1863, 12 Stat. 75.5, and May 11th, 1856, 14 Stat. 46, it is not necessary to set forth the language of the ordei of the commanding general. This case distinguished from Bean v. Beckwil&, 18 Wall. 510.

The first of these defenses is intended to assert the validity of the military order by which defendants under compulsion of that order paid the rent which as tenants of Clark they then owed to him, into the military chest of Gen. Schofield, and that said order being lawful and valid is a full protection to them and a bar to this action. We shall not undertake to decide in this case whether Gen. Schofield had such authority as would make that payment a discharge of the debt or not. The third plea, conceding that the order of Gen. Schofield may not of itself be a sufficient defense to the action, invokes the aid of the fourth section of article 11 of the constitution of the state of Missouri as making the facts set out in the first plea a good defense. The language of this section is as follows: 'No person shall be prosecuted in any civil action or criminal proceeding for or on account of any act by him done, performed, or executed after the first day of January, 1861, by virtue of military authority vested in him by the government of the United States or that of this state to do such act, or in pursuance of orders received by him from any person vested with such authority; and if any action or proceeding shall heretofore have been or shall hereafter be instituted against any person for the doing of any such act, the defendant may plead this section in bar thereof.' This constitutional provision was adopted in 1865, and was clearly intended to protect the military officers or those acting under them from liability, civil or criminal, for acts done under their orders. Whether it covers the present case or not is not a question within our province to decide. The plea is made in a state court and sets up a defense under the state law, and however much the party may be aggrieved by that court's decision he in that plea sets up an immunity under a state law and not under the law of the United States. Of such matter this court has no jurisdiction, and we consider it no further. The second and fourth pleas both set up the act of March 3, 1863, (12 St. 755,) as a defense; the second plea relying upon the fourth section of the act as a full defense to any suit at all in such case as the present, and the fourth plea setting up the specific defense of the statute of limitation found in the seventh section of that act. The fourth section is as follows: 'That any order of the president, or under his authority, made at any time during the existence of the present rebellion, shall be a defense in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any such seizure, arrest, or imprisonment made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of congress, and such defense may be made by the special plea or under the general issue.' And the seventh section declares 'that no suit or prosecution, civil or criminal, shall be maintained for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or act omitted to de done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the president of the United States, or by or under any act of congress, unless the same shall have been commenced within two years next after such arrest, imprisonment, trespass, or wrong may have been done or committed, or act may have been omitted to have been done: provided, that in no case shall the limitation herein provided commence to run until the passage of this act, so that no party shall, by virtue of this act, be debarred of his remedy by suit or prosecution until two years from and after the passage of this act.' The act of May 11, 1866, to amend this act, (14 St. 46,) by its first section declares that the benefit of this defense shall extend to any acts done or omitted to be done during said rebellion by any officer or person, under and by virtue of any order, Written or verbal, general or special, issued by the president or secretary of war, or by any military officer of the United States holding command of the department, district, or place within which such acts * * * were done or omitted to be done, either by the person or officer to whom the order was addressed, or for whom it was intended.' The act of 1863 also makes elaborate provision for the removal of this class of cases, including any act done under color of authority derived from the president, from a state court into a federal court, which provision is also made more effectual by the act of 1866. It is not at all difficult to discover the purpose of all this legislation. Throughout a large part of the theater of the civil war the officers of the army, as well as many civil officers, were engaged in the discharge of very delicate duties among a class of people who, while asserting themselves to be citizens of the United States, were intensely hostile to the government, and were ready and anxious at all times, though professing to be non-combatants, to render every aid in their power to those engaged in active efforts to overthrow the government and destroy the Union. For this state of things congress had provided no adequate legislation, no law by which the powers of these officers were so enlarged as to enable them to deal with this class of persons dwelling in the midst of those who were loyal to the government. Some statutes were passed after delay of a general character, but it was seen that many acts had probably been done by these officers, in defense of the life of the nation, for which no authority of law could be found, though the purpose was good and the act a necessity. For most of these acts there was constitutional power in congress to have authorized them, if it had acted in the matter in advance. It is possible that in a few cases, for acts performed in haste and in the presence of an overpowering emergency, there was no constitutional power anywhere to make them good. But who was to determine this question; and for service so rendered to the government by its own officers, and by men acting under the compulsory power of these officers, could congress grant no relief? That an act passed after the event, which, in effect, ratifies what has been done, and declares that no suit shall be sustained against the party acting under color of authority, is valid, so far as congress could have conferred such authority before, admits of no reasonable doubt. These are ordinary acts of indemnity passed by all governments when the occasion requires it. In the legislation to which we have referred in the act of 1863 and the amendatory act of 1866, congress seems to have well considered this subject. By the fourth section of the act of 1863 it undoubtedly intended to afford an absolute defense, as far as it had power to do so, in this class of cases. By sections 5 and 6 it was enacted that the person sued for any of this class if acts, performed or omitted under orders of officers of the government, even when there was only color of authority, could, instead of having his case tried in a state court, where both court and jury might be prejudiced against him, remove his case into a court of the United States for trial. That this act is constitutional, so far as it authorizes this removal, was settled in the case of The Mayor v.Cooper, 6 Wall. 247. The defendant, however, for some reason did not attempt to remove this case into the circuit court of the United States, probably because the supreme court of the state had decided in the case of State v. Gatzweiler, 49 Mo. 17, that the limitation clause of the act of congress was valid, and was binding on the state court. The third measure of relief which those statute provided for said case was this statute of limitations, found in the seventh section relief which those statutes provided of the right of action, like the right of removal, did not depend, by the terms of the statute, on the validity of the authority set up by the party. In one case it is obvious that that question must be inquired into after the removal. In the other, if the action had not been brought within two years, it was immaterial; for the plaintiff could not recover, however void the authority under which defendant acted. Had congress power to pass such a law? The suit being one which, under the act of congress, could be removed into the courts of the United States, congress could certainly prescribe for it the law of limitations for those courts. If for such actions in those courts, why not in all courts? Otherwise there would be two rules of limitation of actions in different courts holding pleas of the same cause. But there are other considerations which lead to the conclusion that congress must have the right to prescribe the rule of limitations for all courts in this class of cases. The act complained of is done for the benefit of the government by one of its officers, or by his imperative orders, which could not be resisted. If done under a necessity or a mistake, the government should not see him suffer. In such a case as the present, where the money collected went into the military chest, and was either turned over to the treasury or used to pay the military expenses of the United States, the government is bound in equity, if not legally, to repay the defendant, if judgment goes against him, what it received, with interest and costs. It has a right to say in such cases that the suit, which is to establish this liability, must be brought within reasonable time in whatever court it is brought, and to determine what is that reasonable time. The government which thus exposes its officers and others, acting under its compulsory exercise of power, to be sued, while not denying redress for the illegal exercise of such power, must have the authority to require that suits brought for such redress shall be commenced within reasonable time. The question in all such cases is one that arises under the constitution and laws of the United States, because the act questioned is one done or omitted under color of authority claimed to be derived from the government, and therefore involves the consideration whether such authority did in fact, or could in law, exist. It is one, consequently, that falls within the constitutional jurisdiction of the judicial power of the United States. Hence it follows that congress might vest that jurisdiction exclusively in the courts of the United States, and might regulate all the incidents of suits brought in any jurisdiction authorized to entertain them. It is upon this principle that the case of Arnson v. Murphy, 109 U. S. 238, [S. C. 3 SUP. CT. REP. 184,] was decided. The question there was whether the statute of limitations of the state or of congress should govern, the suit having been brought to recover for duties illegally assessed. And though the action was one properly brought originally in the state court, and which might have been tried there, it was held that as the money collected by the collector had been paid into the treasury, and the United States was responsible for the judgment which might be recovered against him, and congress having also modified the right of action which plaintiff had at common law, the provisions of the act in regard to time of commencing the action governed the case, and that they were necessarily exclusive. The supreme court of Missouri, in the case of State v. Gatzweiler, 49 Mo. 17, held that the seventh section of the act of 1863 is not only valid, but is binding on the state courts. Quoting from the case of Clark v. Dick, 1 Dill. 15, it concurs with the circuit court that if congress has the right to determine in what courts such questions must be tried, it must necessarily have the power to regulate the remedy, including the right to prescribe the time within which the suit must be brought. That court further cites from the same opinion with approval, as follows: 'Nor is the objection sound that in such cases the action, if tried in the state courts, will be subject to the laws of limitations prescribed by the states, while in the federal courts a different rule would prevail. For the act of congress by its terms applies to all cases of the character described in the statute, and we see no reason to limit its application to the federal courts. If congress has a right to legislate on this subject, it has the right to make that legislation the law of all courts into which such a case may come, and we think they have done this in the statute under consideration.' That a similar statute in regard to suits by or against an assignee in bankruptcy governs the state courts, see Jenkins v. The Bank, 106 U. S. 571, [S. C. 2 SUP. CT. REP. 1,] and Jenkins v. Loewenthal, 3 SUP. CT. REP. 638. It is no answer to this to say that it interferes with the validity of contracts, for no provision of the constitution prohibits congress from doing this, as it does the states; and where the question of the power of congress arises, as in the legal-tender cases, and in bankruptcy cases, it does not depend upon the incidental effect of its exercise on contracts, but on the existence of the power itself. In regard to the states, which are expressly forbidden to impair by legislation the obligation of contracts, it has been repeatedly held that a statute of limitation which reduces materially the time within which suit may be commenced, though passed after the contract was made, is not void if a reasonable time is left for the enforcement of the contract by suit before the statute bars that right. Such is the case before us, for the statute leaves two years after its passage, and two years after cause of action accrued, within which suit could be brought. It is said that the plea does not bring the case within the provisions of the act of congress, because this is an action to recover of the defendant the rents which are due from him to the plaintiff on a contract in writing, and that the trespass committed on the defendant by order of Gen. Schofield is no answer to plaintiff's right under the contract. But we are of opinion that both the language and the spirit of the statute embrace the present case. The plea makes it plain that it was the purpose of the Schofield order to seize the debt due from defendant to plaintiff, to confiscate it for military purposes. The sum enforced from Mitchell was the precise sum due to Clark for those rents. It was to answer Clark's obligation or default the order was made and enforced against Mitchell. He could not help himself. It could as well be said that the garnishee in attachment is not protected when paying under the order of the court, because there was error in the proceeding against his creditor. In all the confiscation of debts in the cases arises out of the late rebellion the same thing was done by the courts that was done here by the military power, namely, a debt due by a debtor, who was present, was seized and paid over to the United States. Can it be held that this was no proceeding against the creditor? It cannot be denied that such a procedure, if well conducted, is a good defense. It was the purpose of this statute to make it a defense here, though done without authority, if the creditor's right was not asserted by suit within two years. The language of the statute is that no suit shall be maintained unless brought within two years, for any wrongs done or committed, or act omitted to be done, by virtue or under color of authority derived from or exercised by or under the president. The act done here was the payment, under summary confiscation, of the debt due Clark to the military officer. The act omitted was the omission by Mitchell, during all these years, under that order, to pay to Clark. The two-years statute was intended to cover the act done by Mitchell in paying according to the order of Schofield, and the omission in refusing to pay to Clark. The case of Harrison v. Myer, 92 U. S. 111, was a case where the rent due under a lease from an absconding malcontent was seized by a military order. This court held that the lessor could not afterwards insist on the contract. His property was seized, says the court, and the tenant was no longer responsible to him, who could no longer secure him possession, and as the lessee was obliged to render obedience to paramount authority, it was entirely competent for him to enter into a new contract to protect his interest. It is said, however, that the supreme court of Missouri held the plea to be bad because it did not set out a copy of the order of Gen. Schofield on which the defense is founded, either in hoec verba or in substance, and that this, not being a question of federal law, is sufficient to sustain the judgment of that court. But there are several sufficient answers to this: (1) The opinion of the supreme court, while mentioning this objection en passant, does not decide that it is of itself sufficient to invalidate the plea. (2) It does proceed in a lengthy discussion of the plea on its merits, and rests its judgment on the ground that congress had no power to pass the statute of limitations in question. (3) The question, whether a plea sets up a sufficient defense when the defense relied on arises under an act of congress, does present, and that necessarily, a question of federal law; for the question is, and must be, does the plea state facts which, under the act of congress, constitute a good defense? (4) In this particular matter congress made even the manner of pleading the defense a question of federal law by the provisions of the statutes on this subject. By section 4 of the act of 1863, (12 St. 756,) it is enacted that the defense which it affords may be made by special plea, or under the general issue; and by section 1 of the act of 1866, (14 St. 46,) that the order which shall be a sufficient defense may be written or verbal, general or special. These provisions furnish the rules by which the manner of setting up the defense is to be governed, and they leave no doubt in our mind that the liberality which they intended to prescribe in the matter requires that the present plea of the statute of limitations, being good in substance, is sufficient in form of statement. If the order was verbal, if it was general, if it could be given in evidence under the general issue, it is sufficiently set out in this plea as an order of Gen. Schofield, in command of that military department, under which defendant was compelled to pay to that officer's subordinate the rent he owed to plaintiff. In the case of Bean v. Beckwith, 18 Wall. 510, the defendants did not rely upon the statute of limitations of 1863, but pleaded as a special defense that one of them was a provost-marshal, and the other acted under his orders; and that they both acted under the authority and by the order of Abraham Lincoln, president of the United States. But whether there was in that case a special order of the president to the provost-marshal, or whether he assumed to arrest and imprison the plaintiff under some proclamation or general order, did not appear by the plea, and as it was a case of arrest and imprisonment, this court held that the authority of the defendants to make it should be specifically set forth. That is not the present case, for the defendant here did as he was compelled to by others, and probably never saw the order under which he was forced to pay the money, and has not now within his control the order under which the officer acted. He has, basides, given with sufficient clearness the substance of Gen. Schofield's order to enable plaintiff to deny its existence, if he can, or to make any other reply appropriate to the merits of the case, and if the order was verbal no better statement of it can be exacted. We concur in the opinion of the lower courts in Missouri that the plea of the statute of limitations is a good plea, and is sufficiently set out; and for the error in sustaining the demurrer to this plea, the judgment of the supreme court of Missouri is reversed, and the case remanded to that court for further proceedings, not inconsistent with this opinion. FIELD, J., dissenting. I cannot agree with my associates in the judgment in this case. I know of no law that was ever enacted in the United States, which would justify a military officer in enforcing the payment to him of a debt due from one loyal citizen to another loyal citizen, neither being in the military service, or residing in a state declared to be in insurrection, or in which the courts of law were not open and in the peaceful exercise of their jurisdiction. Such a law, in my opinion,—I say it with respect,—would dishonor the statute books of the United States; and that which has never been enacted by legislative power can never be rightly adjudged to exist by a judicial tribunal. The averment of the answer that the payment was enforced as a means of carrying on military operations by the United States we know to be untrue. At that time the government appropriated the requisite funds to prosecute the war, and our legislation and history show that no plundering of loyal citizens in loyal states, nor any forced contribution from them, was ever ordered or sanctioned by public authority. The enforced payment in question could, therefore, be no defense to the claim of the plaintiff; and it is difficult to understand how the act of congress of March 3, 1863, or the amendatory act of May 11, 1866, fixing a limitation to actions against military officers for certain acts done by them during the war, or against parties acting under their direction, can be invoked in this case. 12 St. 755; 14 St. 216. The fourth section of the act of March 3, 1863, makes the order or authority of the president a defense only to actions 'for any search, seizure, arrest, or imprisonment made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of congress.' It has reference to acts affecting the person or such property as is subject to physical seizure. It does not apply to actions for breaches of contract between citizens in loyal states, or to any questions arising out of such contracts. Debts, being intangible things, were incapable of seizure in any proper sense of that term; and the debtors were not discharged from liability because of an unlawful exaction from them of equivalent sums. What was thus exacted could under no circumstances be regarded as anything more than a forced loan. By no possible alchemy could it be converted into the payment of their debt to another. Its effect upon others was not a matter which concerned the military officer. His object, according to the defendant's theory, was to raise funds for military operations; if so, the relations of debtor to creditor were not affected by his exaction from one of them. Williams v. Bruffy, 96 U. S. 187. The debt of the defendants to the plaintiff was not thereby discharged; it is still owing. It can only be discharged when paid to him or to others by his direction. Independently of this consideration, the statute cannot be construed to give protection to any one in the commission of unlawful acts. Neither the president nor congress can confer immunity for acts committed in violation of the rights of citizens. An army in the enemy's country may do all things allowed by the rules of civilized warfare, and its officers and soldiers will be responsible only to their own government. But in loyal states, or in such parts as are not in insurrection, or declared to be so, and in which the courts are open, the rights of citizens are just as much under constitutional security and protection in time of war as in time of peace. Because civil war was raging in one part of the country the constitutional guaranties of the rights of person and property were not suspended where no such war existed. We sometimes hear the opposite doctrine advanced; but it has no warrant in the principles of the common law or in the language of the constitution. As I observed on a former occasion, our system of civil polity is not such a rickety and ill-jointed structure that when one part is disturbed the whole is thrown into confusion and jostled to its foundation. The existence of insurrection and war in other states than Missouri, or in parts of that state distant from St. Louis, did not suspend the constitution or any of its guaranties in that city. No proclamation of the president had ever declared Missouri to be in a state of insurrection, and it is a matter within our judicial knowledge that St. Louis, so far from being the theater of actual warfare, was a city where supplies were collected for military operations in other quarters, and where the courts were in the undisturbed exercise of their jurisdiction. It is true that where rebellion exists, and the public safety requires it, the privilege of the writ of habeas corpus may be suspended, and to that extent one of the safeguards of the right of personal liberty may be withdrawn, but this suspension in no respect affects the claims of private citizens against each other arising out of contracts between them or the means of their enforcement. The constitution does not forbid, during such suspension or by reason of it, the institution of suits for such claims, or authorize congress to forbid it. Congress may provide for indemnifying those who, in great emergencies, acting under pressing necessities for the public, in vade private rights in support of the authority of the government; but between acts of indemnity in such cases and the attempt to deprive the citizen of his right to compensation for wrongs committed against him or his property, or to enforce contract obligations, there is a wide difference, which cannot be disregarded without a plain violation of the constitution. As the fourth section of the act of 1863 refers only to seizures, arrests, and imprisonments committed, or acts omitted by order or authority of the president, or under color of an act of congress, it has no bearing upon actions for breaches of contract between citizens. The seventh section, fixing a limitation to actions for such arrests, imprisonment, and other trespasses, does not, therefore, apply to the case before us. And the amendatory act of 1866 only extends the benefit of the limitation to actions for similar acts or omissions when committed by a person acting under the order of the president or the secretary of war, or of a military commander. It does not, any more than the act of 1863, govern actions for breaches of contract between private parties. Could it be construed to embrace a case like the present it would clearly be unconstitutional. The right of a lessor to sue his lessees for breach of contract is in no way dependent upon any act or authority of congress. It is a matter purely of state concern, and congress can no more declare within what time he shall sue for his rent than it can prescribe the court in which the action shall be brought, or the form of the proceedings by which it shall be conducted. Its power to fix a limitation to actions can apply only to such as are in the first instance brought in the courts of the United States, and to those wherein the right or interest claimed depends upon a law of congress. If such a law gives the right or interest claimed, it may prescribe the time in which it shall be asserted, but not otherwise. It would hardly be pretended that congress can enlarge the time prescribed by the state for bringing in her courts actions upon contracts; and if it cannot enlarge, how can it limit the time? Indeed, it cannot be held that, congress may interpose a limitation to the right of enforcing in the courts of a state debts existing between her citizens, unless it be also held that, as to all actions in state tribunals, it can say when they may and when they may not be brought. It will be long, I trust, before the states will become thus helpless to enforce in their own tribunals contracts between their own citizens. The argument of the court, in its opinion, is substantially this: An action in which a defense under an act of congress is set up may be removed from a state court to a federal court; therefore congress may prescribe the law of limitation for it in the latter court; and if in that court, it may in all courts, as otherwise there would be two rules of limitations of actions in different courts holding pleas of the same cause. It is easy to see that this mode of reasoning would necessarily lead to the conclusion that congress may prescribe the limitation to all actions in state courts between citizens, because actions commenced there may be removed to a federal court when they are between citizens of different states; and, on the assumption of the argument, congress may prescribe the law of limitation for such cases in the federal court; and if in that court, it may, says the opinion, in all courts, as otherwise there would be two rules of limitation of actions upon the same causes in different courts—one if the action remain in the state court, and another if it be removed to the federal court. The length to which the argument leads proves the error of the assumption on which it is founded. The true doctrine is the reverse of this; the limitation of actions in the state courts for the enforcement of rights which are not dependent upon acts of congress or upon the constitution, is a matter purely of state regulation, which the federal courts must follow when such actions are transferred to them. The object of the constitution in extending the judicial power of the United States to controversies between citizens of different states was to avoid, what was at the time of its adoption apprehended, the existence of state attachments and state prejudices, which might injuriously affect the administration of justice in the state courts against non residents. To carry out this purpose the judiciary act provides for the removal to a federal court of actions commenced in a state court involving such controversies. It has no other object; and the removal in no respect affects the rights of the parties, either the claims on the one hand or the defenses on the other. Only the tribunal and, in some respects, the modes of procedure are changed. The limitations prescribed by the state law govern in both tribunals.

107.US.557

1. The swamp and overflowed lands granted by the act of Sept. 28, 1850, c. 84, are subject to the disposal of the States wherein they respectively lie, and no party other than the United States can question such disposal or enforce the conditions of the grant. 2. The proviso to the second section of the act, that the proceeds of the lands shall be applied exclusively, as far as necessary, to the purpose of reclaiming the same by levees and drains, imposed an obligation, which rests upon the good faith of the States. No trust was thereby attached to the lands, nnd the title to them, which is derived from either of the States, is not affected by the manner in which she performed that obligation. 3. The State of Iowa having granted its swamp and overflowed lands to the counties respectively in which they are situate, Mills County, insisting that certain lands were of this character, made claim thereto. The Burlington and Missouri River Railroad Company claimed them under the act of MIay 15, 1850, c. 28. These conflicting claims gave rise to a suit between the parties, which was decided by the State courts in favor of the county. A writ of error was thereupon brought; and, whilst it was pending here, a compromise was entered into by which the county was to make certain conveyances to the company, and to pay it the sum of .$10,000 for lands previously disposed of. Conveyances were executed accordingly. Afterwards, the county instituted suit to have the compromise declared void, and the company sued for the .510,000. The State courts having sustained the compromise, and decided against the county in both suits, writs of error were brought here. Held, 1. That the county cannot set up that the lands were disposed of contrary to the provisions of the said act of 1850. 2. That although, after the compromise was made, the writ then pending was submitted to this court, and decided in favor of the county, yet that this did not abrogate the compromise, as the parties continued to act under it; and that the decision of the State court in the present cases is not repugnant to, nor in disaffirmance of, the opinion and judgment of this court.

These cases were consolidated and heard together in the state courts, both relating to the same subject-matter, viz., the validity of a compromise agreement made on the twenty-seventh of October, 1868, between Mills county, in the state of Iowa, and the Burlington & Missouri River Railroad Company, in reference to certain lands lying in said county, claimed by the county as swamp and overflowed lands, and claimed by the railroad company as railroad grant lands. The claim of the county was based on the act of congress approved September 28, 1850, entitled 'An act to enable the state of Arkansas and other states to reclaim the swamp lands within their limits;' and an act of the general assembly of the state of Iowa, entitled 'An act to dispose of the swamp and overflowed lands in the state of Iowa, and to pay the expenses of selecting and surveying the same,' approved January 13, 1853; and other acts of the general assembly of said state. The claim of the railroad company was based upon the act of congress of May 15, 1856, granting to the state of Iowa certain lands for the purpose of aiding the building of a railroad from Burlington, Iowa, to a point on the Missouri river, at or near the mouth of Platte river in Nebraska. The act of congress first referred to (9 St. 519) declared in effect 'that to enable the state of Iowa to construct the necessary levees and drains to reclaim the swamp and overflowed lands therein, the whole of those swamp and overflowed lands, made unfit thereby for cultivation, which shall remain unsold at the passage of this act, shall be, and the same are hereby, granted to said state.' And, after providing for listing and patenting the lands, it was, by section 2, enacted that 'the fee-simple to said lands shall vest in the state of Iowa, subject to the disposal of the legislature thereof: provided, however, that the proceeds of said lands, whether from sale or direct appropriation in kind, shall be applied exclusively, as far as necessary, to the purpose of reclaiming said lands, by means of the levees and drains aforesaid.' The general assembly of Iowa, by an act passed January 13, 1853, declared 'that all swamp and overflowed lands granted to the state of Iowa by the act of Congress (September 28, 1850) be, and the same are, hereby granted to the counties respectively in which the same may lie or be situated, for the purpose of constructing the necessary levees and drains to reclaim the same; and the balance of said lands, if any there be, after the same are reclaimed as aforesaid, shall be applied to the building of roads and bridges, when necessary, through or across said lands, and if not needed for this purpose, to be expended in building roads and bridges within the county.' On the twenty-second of March, 1858, the general assembly passed another act containing, among others, the following provisions: (1) 'Be it enacted by the general assembly of the state of Iowa, that it shall be competent and lawful for the counties owning swamp and overflowed lands to devote the same, or the proceeds thereof, either in whole or in part, to the erection of public buildings for the purpose of education, the building of bridges, roads, and highways; for building institutions of learning, or for making railroads through the county or counties to whom such lands belong: provided, that before any of said lands, or the proceeds thereof, shall be so devoted to any of the purposes aforesaid, the question whether the same shall be so done shall be submitted, at some general or special election, to the people of the county.' (2) 'The proper officer or officers of any county may contract with any person or company for the transfer and conveyance of said swamp or overflowed lands, or the proceeds thereof, or otherwise appropriate the same to such person or company, or to their use, for the purpose of aiding or carrying out any of the objects mentioned in the first section of this act, which said contract shall be reduced to writing and signed by the respective parties or their lawful authorized agents.' Another section prescribed the mode in which elections should be called and held, and without which any contract should be void, and concluded with the following proviso: 'Provided, that no sale, contract, or other disposition of said swamp or overflowed lands shall be valid, unless the person or company to whom the same are sold, contracted, or otherwise disposed of, shall take the same subject to all the provisions of the acts of congress of September 28, 1850, and shall expressly release the state of Iowa, and the county in which the lands are situated, from all liability for reclaiming said lnad.' The Burlington & Missouri River Railroad Company was incorporated under the laws of the state of Iowa, January 23, 1852, for the purpose of constructing a railroad from Burlington to the most eligible point on the Missouri river. The act of congress under which said company claimed the lands, passed May 15, 1856, (11 St. at Large, 9,) granted to the state of Iowa, for the purpose of aiding in the construction of railroads 'from Burlington, on the Mississippi river, to a point on the Missouri river near the mouth of the Platte river,' etc., 'every alternate section of land, designated by odd numbers, for six sections in width on each side of said roads;' but it was provided that if any sections should be sold, or become subject to pre-emption, before the lines of the roads should be definitely fixed, other lands might be selected in lieu thereof, nearest to the tiers designated, but not to exceed 15 miles from the lines of the roads. It was further provided that the lands thus granted to the state should be subject to the disposal of the legislature thereof, for the purpose aforesaid, and no other. The general assembly of Iowa, by an act dated June 3, 1856, accepted this grant, and enacted (section 2) 'that so much of the lands, interests, rights, powers, and privileges as are or may be granted and conferred, in pursuance of the act of congress aforesaid, to aid in the construction of a railroad from Burlington, on the Mississippi river, to a point on the Missouri near the mouth of the Platte river, are hereby disposed of, granted, and conferred upon the Burlington & Missouri River Railroad Company, a body corporate, created and existing under the laws of the state of Iowa.' The acts and clauses of acts referred to are sufficient to show the general nature of the litigation which sprang up between the parties now before the court. The railroad company having claimed the right to appropriate certain of the lands in Mills county, which the county authorities claimed to be swamp and overflowed lands, the county, in December, 1863, commenced a suit in chancery against the railroad company to establish its title to the lands in question between them. The county court and the supreme court of the state decided in favor of the county, and the railroad company brought the case to this court by writ of error, where it was pending when the compromise agreement in question was entered into. That agreement consisted of a proposition made by the county authorities to the railroad company, which was accepted by the latter. The following is a copy of the papers which passed between them: PROPOSITION OF THE COUNTY. 'In order to settle and finally adjust the lawsuit now pending in the supreme court of the United States, wherein Mills county, in the state of Iowa, is plaintiff, and the Burlington & Missouri River Railroad Company is defendant, and secure the completion of said road through Mills county, via Glenwood, in said county, we, the undersigned, agents of said county, submit the following proposition to the board of directors of said railroad company, to wit: 'There are in dispute between the parties to the said lawsuit 23,316 acres. For the purpose of having our proposition understood, we acknowledge that we owe you acres of land to the amount of 23,316; to pay which we have and offer you odd sections, vacant, (most of which is a part of the 23,316 acres,) and even sections patented to the county and unsold, in the aggregate 9,080 acres; balance of the land due you, 14,236 acres. For further payment we have and offer to you of the odd sections, (about all of which is of the 23,316 claimed by you,) subject to pre-emption made through the county, acres to the amount of (on which nothing has been paid to the county) 4,660. Of these pre-empted lands we estimate that about one-half of the pre-emptions are fraudulent, and ought not to be recognized; but the county must ask that where bona fide improvements have been made on the same, the pre-emptors must be secured in their right to the same, and have the privilege of purchasing at $1.25 per acre of the county or company, which amount shall, in any event, go to the railroad company. Now you will have land for land, subject only to the pre-emptor's claims, until there will be due you in acres 9,576. 'The remainder, 9,576 acres, belong to bona fide settlers and purchasers, who, we must insist, shall be protected by the county. And as we have paid you all the land we have, we offer you for this balance $10,000 in money. 'The company should understand that the balance of 9,576 acres is the land, portions of which it has been settling with our individual citizens for, and there is included in the 9,576 acres all the lands the company has sold to citizen settlers at $1.25 per acre. With this understanding, the $10,000 balance we offer you will be just as much less than 9,576 acres as the company has thus sold, and therefor our pay would, perhaps, amount to $1.50 or more. 'It is understood that the said suit now pending shall be continued, by agreement of the parties, from term to term, until the conditions of this contract or proposition shall be complied with. 'It is also further understood that the foregoing proposition shall not be binding on the county of Mills, unless said railroad company shall complete said railroad through Mills county via Glenwood and build a depot at Glenwood, in said county; and in case said railroad company shall fail or neglect to build said railroad through Mills county via Glenwood, and also to build and establish a depot at Glenwood, in said county, then, and in that event, the said lawsuit shall stand for final hearing in the supreme court of the United States, the same as if this proposition had never been made. In case the suit shall be settled on the basis of this proposition, each party shall pay their own costs. The manner of transferring the land, whether the county shall deal with the purchasers and pre-emptors, or whether the railroad company under the restrictions indicated, the county is not particular about, but will agree to what may seem the most practicable. 'The amount in acres, as stated above, may not be exactly correct and probably is not, but it is believed to be nearly so; but we wish it understood that the company shall have all the swamp lands the county now hold or are entitled to in Mills county, Iowa, subject only to the conditions indicated in the foregoing. Witness our hands this July 13, 1868. [Signed] William Hale, E. C. Bosbyshell, D. H. Solomon, L. W. Tubbs, majority of the committee.' ACCEPTANCE. 'BURLINGTON, IOWA, October 27, 1868. 'This proposition is hereby accepted, and the terms and stipulations and conditions are agreed to by the Burlington & Missouri River Railroad Company. [Signed] Burlington & Missouri River Railroad Company. By C. E. Perkins, Supt.' This proposition and acceptance being reported by the committee to the board of supervisors of Mills county, the said board passed the following resolution: 'After giving the report due consideration, it is resolved by the board of supervisors of Mills county, Iowa, at their regular session in November, 1868, that the proposition submitted to the Burlington & Missouri River Railroad Company, by our special railroad committee, and the acceptance of the same by the said company, be, and the same is hereby, confirmed and ratified, and that the same be spread upon the records of this board. 'The ayes and nays being called for, the vote stands as follows: 'Ayes—Allis, Forrester, Haynie, Lamb, Utterback, Wing, Ward, Russell, Summers, and Mr. Chairman. Nays—None.' Several deeds of conveyance were executed by the board of supervisors of Mills county to the Burlington & Missouri River Railroad Company in the years 1869, 1870, and 1871, in pursuance of this compromise agreement, conveying altogether 13,720 55-100 acres of land. The suit of Mills county (one of the consolidated suits now before us) was brought in January, 1874, against the Burlington & Missouri River Railroad Company and others, in the Mills county district court, by petition, seeking to have the said compromise agreement and the said deeds of conveyance declared void, on the ground that the said agreement was not authorized by a vote of the people of the county, but was obtained by fraud; that it involved a diversion of a trust fund, and a surrender by agents of the whole subject-matter in controversy in a suit of their principal; that the judgment of the supreme court of Iowa, in the original suit, was duly affirmed by this court in February, 1870; and that, at an election held in October, 1871, for affirming or disaffirming said agreement, the people of Mills county disaffirmed the same by a vote of 1,031 against 357. The suit of the Chicago, Burlington & Quincy Railroad Company (successor to the Burlington & Missouri River Railroad Company) against Mills county, (the other of the consolidated suits now before us,) was brought in May, 1875, to recover the sum of $10,000, which, by the said compromise agreement, was to be paid by Mills county to the Burlington & Missouri River Railroad Company; and as the answer of the county set up the matters alleged in the petition in the other suit, the two suits were consolidated. The Mills county district court decided against the county in both suits, and the supreme court of Iowa affirmed the decrees of the district court. The decrees of the supreme court are brought here for review upon the allegation that they are repugnant to the laws and authority of the United States. The principal federal question which arises in these cases is whether the compromise agreement made between Mills county and the Burlington & Missouri River Railroad Company was in violation of the act of congress by which the swamp and overflowed lands in the state of Iowa were granted to that state. It is alleged that this grant was made for a special purpose, and upon express trust, viz., to be applied exclusively, as far as necessary, to the purpose of reclaiming said lands by means of levees and drains, as declared in the act of 1850. It is not our province, on these writs of error, to inquire whether the compromise in question was or was not in violation of the state laws. That question was for the state court to determine; and it has been determined in the negative. Nor is it our province to inquire whether any fraud or excess of authority was committed by the agents of the county in making the compromise. That was also a question for the state court to determine; and it has been determined in the negative. We are only to inquire whether the state laws themselves, by virtue of which the said transaction was allowed and sanctioned, were such a violation of the act of congress as to require a reversal of the decrees of the supreme court of Iowa. The statutes in question have already received some consideration at the hands of this court in the cases of Emigrant Co. v. Co. of Wright, 97 U. S. 339, and Emigrant Co. v. Co. of Adams, 100 U. S. 61. Those cases came before us on appeal from the circuit court of the United States for the district of Iowa. In both of them certain contracts for the purchase of swamp and overflowed lands from the county authorities were assailed by charges of fraud, and as not being in conformity with the statutes of Iowa; and those questions were necessarily discussed. It was also contended that the disposition of the lands operated as a diversion of the fund in violation of the original grant. In the first case, the contract was declared to be void for actual fraud of the grossest character, and the other questions were not fully considered. In the latter case, this court did not consider the evidence of fraud as sufficient to avoid the purchase, and this rendered it necessary to examine the question of repugnancy between the state laws and the act of congress with more care. On the first consideration of the case we were disposed to think that the act of assembly of the state of Iowa, passed in 1858, by which the several counties owning swamp and overflowed lands were authorized to devote the lands, or the proceeds thereof, either in whole or in part, to the erection of public buildings for the purpose of education, the building of bridges, roads, and highways, or for building institutions of learning, or for making railroads through the county, was repugnant to the provisions of the act of congress, as authorizing a diversion of the fund from its proper purposes, and that this repugnancy rendered such dispositions of the lands void. But, on a reconsideration of the subject, we were inclined to modify our first impressions. The following extract from the opinion then delivered will show the final view which we took of the subject: 'The argument against the validity of the scheme [namely, that created by the act of 1858] is that it effects a diversion of the proceeds of the lands from the objects and purposes of the congressional grant. These were declared to be to enable the state to reclaim the lands by means of levees and drains. The proviso of the second section of the act of congress declared that the proceeds of the lands, whether from sale or direct appropriation in kind, should be applied exclusively, as far as necessary, to these purposes. This language implies that the state was to have full power of disposition of the lands; and only gives direction as to the application of the proceeds, and of this application, only 'as far as necessary' to secure the objects specified. It is very questionable whether the security for the applicaion of the proceeds thus pointed out does not rest upon the good faith of the state, and whether the state may not exercise its discretion in that behalf without being liable to be called to account, and without affecting the titles to the lands disposed of. At all events, it would seem that congress alone has the power to enforce the conditions of the grant, either by a revocation thereof, or other suitable action, in a clear case of violation of the conditions. And as the application of the proceeds to the named objects is only prescribed 'as far as necessary,' room is left for the exercise by the state of a large discretion as to the extent of the necessity.' Page 69. Upon further consideration of the whole subject we are convinced that the suggestion then made, that the application of the proceeds of these lands to the purposes of the grant rests upon the good faith of the state, and that the state may exercise its discretion as to the disposal of them, is the only correct view. It is a matter between two sovereign powers, and one which private parties cannot bring into discussion. Swamp and overflowed lands are of little value to the government of the United States, whose principal interest in them is to dispose of them for purposes of revenue; whereas the state governments, being concerned in their settlement and improvement; in the opening up of roads and other public works through them; in the promotion of the public health by systems of drainage and embankment,—are far more deeply interested in having the disposal and management of them. For these reasons it was a wise measure on the part of congress to cede these lands to the states in which they lay, subject to the disposal of their respective legislatures; and although it is specially provided that the proceeds of such lands shall be applied, 'as far as necessary,' to their reclamation by means of levees and drains, this is a duty which was imposed upon and assumed by the states alone, when they accepted the grant; and whether faithfully performed or not, is a question between the United States and the states; and is neither a trust following the lands, nor a duty which private parties can enforce as against the state. We are, therefore, of opinion that the act of congress cannot be invoked by the county of Mills for the purpose of showing that its provisions have been violated by the state laws, under which alone the county itself can set up any title to the lands, and by virtue of which, as decided by the state court, it has disposed of them for railroad purposes. But it is contended that the decision of this court, rendered in February, 1870, affirming the decree in the original suit, and adjudging the title of the lands to be in Mills county, and not in the Burlington & Missouri Railroad Company, is rendered null and ineffective by the decrees of the supreme court of Iowa in these cases; and hence that these decrees are against the right of Mills County as established by authority of the supreme court of the United States, and ought for that cause to be reversed. We do not think that this result necessarily follows. The compromise agreement of 1868 was made while the writ of error in that original suit was pending in this court, and before the cause was heard. That compromise settled the matters in difference between the parties. There may have been reasons, independent of the controversy relating to the particular lands in question in that suit, why it was desirable to have the legal questions involved therein settled by the judgment of this court. The county of Mills and the railroad company may have been respectively interested in other lands similarly situated in respect to title as the lands involved in that suit. But, if this were not so, the result would only be that the litigation was continued here after the parties had adjusted their rights by agreement,—an improper proceeding, undoubtedly, but one which would not abrogate or render null the agreement itself, unless the parties voluntarily waived and abandoned it. That they did not waive or abandon it is manifest from the fact that deeds of conveyance were executed by the county to the railroad company in pursuance of the compromise agreement after the decision of this court was rendered; namely, one deed dated September 6, 1870, for 3,560 acres; and another deed dated June 19, 1871, for 240 acres. We are, therefore, of opinion that the decrees made by the supreme court of Iowa in these cases do not violate any act of congress, nor disaffirm the judgment of this court, or impair any right, title, or immunity which the county of Mills has a right to claim under any authority of the United States. The said decrees must, therefore, be affirmed.

106.US.552

A suit for the foreclosure of a mortgage commenced in a State court was removed to the Circuit Court, where a motion to remand it was made and overruled. A final decree in favor of the complainant was passed, whereunder the mortgaged property was sold. From the order confirming the sale all appeal was taken. Held, that the final decree, not disclosing a want of jurisdiction of the court below, as to subject-matter or parties, will be examined here only to ascertain whether the sale conformed to its provisions.

This suit was commenced on the twenty-first day of November, 1874, in the circuit court for De Witt county, Illinois, by Malcolm C. Turner, James Turner, and others, constituting the firm of Turner Bros., against the Indianapolis, Bloomington & Western Railway Company, the Farmers' Loan & Trust Company, and others. The complainants, suing in behalf of themselves and all other bondholders and creditors of the railway company, asked a decree for the foreclosure of several mortgages, covering as well its property and franchises as the road and franchises of the constituent companies, by whose consolidation it was created. The Farmers' Loan & Trust Company appeared and answered. It also filed a cross-bill, making all necessary parties defendant thereto; and, as trustee in some of the mortgages creating prior liens upon the main line of the consolidated road, it prayed for a decree of foreclosure, a sale of the mortgaged property, and a proper distribution of the proceeds arising therefrom among the several classes of creditors of the railway company. Subsequently, on the twenty-sixth of April, 1876, it filed a petition, accompanied by a sufficient bond, for the removal of the suit into the circuit court of the United States for the southern district of Illinois; and thereafter, it is asserted, the state court proceeded no further. A transcript of the proceedings having been filed in the circuit court of the United States, a motion was there made to remand the cause, while the Farmers' Loan & Trust Company moved that the court take jurisdiction. By an order entered on the nineteenth day of July, 1876, the former motion was denied and the latter sustained. On the eighteenth day of July, 1877, a final decree was passed, ascertaining the amounts due and unpaid on the mortgages to the Farmers' Loan & Trust Company. By that decree it was ordered and adjudged that the railway company, within 20 days thereafter, pay the trustee the amount so ascertained, ($6,234,625,) with interest from the date of the decree; that in default of such payment the equity of all the defendants to the cross-bill, in the mortgaged property, be forever barred and foreclosed, and the property—which included all the rights, effects, and franchises of the consolidated company, and of its constituent companies, as to the main line of road—be sold as an entirety, the same being, in the opinion and judgment of the court, incapable of sale separately or in division without material injury to its value. It was further decreed that the mortgaged property be sold without appraisement and without reference, and not subject to any law of Illinois or Indiana, conferring the right of redemption from mortgage sales. On the eighth day of May, 1878, the original decree was amended by way of further direction for its execution. The sale occurred on the thirtieth day of October, 1878, was reported to court on the succeeding day, and on the first day of November, 1878, exceptions thereto were filed by James Turner and the railway company. On the twenty-third of December, 1878, the exceptions were overruled, and an order entered confirming and approving the sale in all respects. On the third day of February, 1879, Turner and the railway company filed their joint petition, praying an appeal from the final order confirming the sale. The appear was allowed, and the bond tendered was approved, not to operate as a supersedeas. Subsequently the purchaser received a deed and took possession of the property under the direction of the court. It may be stated that a similar decree was entered in the circuit court of the United States for the district of Indiana, in a suit pending therein between, substantially, the same parties and relating to the same property. That suit was commenced on the eighteenth day of November, 1874, in the circuit court for Montgomery county, Indiana, and thence removed into the federal court upon the petition of the Farmers' Loan & Trust Company. Notwithstanding the record is very voluminous, it is believed that this statement is sufficient to indicate the grounds upon which this court rests its determination of the case. Numerous errors have been assigned in behalf of the appellants, James Turner and the Indianapolis, Bloomington & Western Railway Company. The first and most important one relates to the jurisdiction of the circuit court of the United States. Their contention is that under the act of March 3, 1875, the state court could not have been deprived of jurisdiction to proceed, unless the petition for removal was filed 'before or at the term at which such cause could be first tried and before the trial thereof;' that the petition of the Farmers' Loan & Trust Company was not so filed; consequently, it is insisted, jurisdiction in the federal court could not have attached. It is further argued that the pleadings disclose the fact that there was no such controversy in this suit, between citizens of different states, as would authorize its removal from the state court under the act of March 3, 1875, or under that of March 2, 1867, even if the latter is in force for any purpose. Without admitting the soundness of these propositions, we are of opinion that the questions of jurisdiction now raised cannot be determined upon an appeal merely from the order confirming the report of sale. Whether the suit was one which the Farmers' Loan & Trust Company was entitled to have removed,—that is, whether the circuit court of the United States could rightfully proceed after the petition for removal, accompanied by a sufficient bond, had been filed in the state court,—was a question directly presented to that court for judicial determination upon the motion that the cause be remanded. The denial of that motion constituted an adjudication by the federal court that the facts existed which were necessary to give jurisdiction. And had the question not been thus formally presented, it was the duty of the circuit court to dismiss or remand the cause, as justice might have required, at any time during its progress, when it appeared that the suit did not really or substantially involve a dispute or controversy properly within its jurisdiction. Act of March 3, 1875, § 5; Williams v. Nottawa, 104 U. S. 209. Further, the final decree necessarily involved, and was itself, a judicial determination, as between the parties, that the suit was one of which that court might take cognizance. That decree, unmodified and unchallenged by any direct appeal therefrom, should, upon this appeal only from the order confirming the sale, be deemed conclusive, between the parties and their privies, as to all matters in issue and by it adjudicated, including the questions of jurisdiction now pressed upon our attention. Such, we think, must be the rule, especially under existing statutes regulating the jurisdiction of the courts of the United States. Whether or not a cause, commenced in a state court, could have been tried at some term thereof prior to the filing of a petition for removal; whether the parties to a particular suit, without regard to their position as plaintiffs or defendants, can be so arranged on different sides of the controversy as to make a proper case for removal upon the ground of citizenship, (Removal Cases, 100 U. S. 457;) whether there is in the suit a separable controversy between citizens of different states to which the judicial power of the United States extends,—are often questions difficult of solution. We have held in numerous cases that upon the filing of a petition and bond for removal in the state court, the suit being removable under the statute, its jurisdiction ceases. And to the end that litigants may not, in such cases, be harassed by doubts as to which court has authority to proceed, the party, against whom the removal is had, is at liberty to move that the suit be remanded; and the act of 1875, for the first time in the legislation of congress, declares that an order of the circuit court remanding a cause may, in advance of the final judgment or decree therein, be reviewed by this court on writ of error or appeal, as the case may require the one or the other mode to be pursued. Prior to that act the remedy, in that class of cases, was by mandamus to compel the circuit court to hear and determine the cause. Babbitt v. Clark, 103 U. S. 606; Railroad Co. v. Wiswall, 23 Wall. 507; Ins. Co. v. Comstock, 16 Wall. 258. When the circuit court assumes jurisdiction of the cause, the party denying its authority to do so may, after final decree and by a direct appeal therefrom, bring the case here for review upon the question of jurisdiction, the amount in dispute being sufficient for that purpose. Railroad Co. v. Koontz, 104 U. S. 15. In the present case we have seen that the appeal is only from the order confirming the sale. Appellants elected not to appeal from the final decree, although it necessarily involved every question affecting the jurisdiction of the circuit court. That decree is, consequently, not before us for any purpose, except to ascertain, from an inspection thereof, whether the sale was conducted in conformity with its provisions. In such cases, upon an appeal, not from the final decree, but only from an order in execution thereof, the court will not examine the record, prior to such decree, to see whether the petition for removal was filed in due time, or whether it makes a case of federal jurisdiction, by reason of the presence in the suit of a controversy between citizens of different states, but will assume that the final decree, being passed by a court of general jurisdiction, and not showing upon its face a want of jurisdiction as to subject-matter or parties, was within the power of the court to render. Whether the order confirming the sale would have been erroneous, had the decree itself disclosed, affirmatively, a want of jurisdiction, is a question which need not be decided. What we have said disposes of numerous other assignments of error, such as that the court erred in decreeing that the property of the railroad company be sold without appraisement and without reference, and not subject to the laws of Illinois and Indiana conferring the right of redemption from sales of mortgaged real estate; in ordering the railroad and other property to be sold without first ascertaining what claims existed which were prior in lien to the mortgages foreclosed; in amending the decree of September, 1877, after the expiration of the term at which it was entered; in ordering the cross-bill of the Farmers' Loan & Trust Company to be taken by default as against the complainants in the original bill, after it appeared that they had become bankrupts, and their property and rights had passed to an assignee in bankruptcy, who was not made a party to the cause; in decreeing the personal property to the railroad company to be sold, and in subsequently delivering it to the purchasers, in disregard of the alleged rights of appellants under the chattel mortgage executed to Thomas on the sixteenth day of November, 1874; in refusing to entertain appellant Turner's petition to intervene, filed on the day of sale; and in directing a foreclosure and sale of the property for the principal and interest of the debt secured by the mortgage, when, as is claimed, it did not appear that the principal had become due. We do not stop to consider whether these objections find any support in the record, since it is sufficient to say that, if any such errors exist, they necessarily inhere, some in the final decree of foreclosure and sale, and others in the orders which preceded it. They cannot be examined upon an appeal merely from the order confirming the report of sale. Our authority extends, as we have shown, no further than to an examination of the exceptions filed by appellants to the report of sale, from the order confirming which this appeal is taken. And some of these exceptions plainly have reference, not to the sale itself, but to the final decree of foreclosure; such, for instance, as that the terms of sale were too onerous; that the property was sold subject to various claims, the amount of which was wholly uncertain; and that the court had no jurisdiction in the case. The only exceptions which properly relate to the sale are that the price at which the property was struck off and sold—$1,000,000—was inadequate and insufficient; and that the property was not advertised for a sufficient length of time. It is enough to say that the record discloses no ground upon which these exceptions could have been sustained. One exception was to the effect that the purchasers at the sale constituted a committee, acting as agents of bondholders of the railway company, and that the report of sale did not disclose the names of the principals for whose use the property was purchased, or the amount to which each of said parties was beneficially interested. We are unable to perceive anything of substance in this exception. Since the sale was, in all material respects, in conformity with the final decree, from which no appeal was prayed, and since the record discloses no ground upon which its fairness can be impeached, the court below properly overruled the exceptions and confirmed the sale. The order appealed from must, consequently, be affirmed. It is so ordered.

108.US.165

1. Cross-appeals must ce prosecuted like other appeals. When a party making a cross-appeal fails, for a period long after the time allowed by law, to perfect his cross-appeal, the court, of its own motion, will dismiss it for want of prosecution. 2. When it appears on the face of the record that the value of the matter in dispute is not sufficient to give jurisdiction, the court will, of its own motion, dismiss an appeal. 3. The sum demanded governs the question of jurisdiction until it appears that it is not the sum in dispute : but when it appears that the sum demanded is not the real sum in dispute, the sum shown, and not the sum demanded, will govern. 4. On appeal by the plaintiff, or by a defendant in ease set-off or counterclaim has been filed or affirmative relief is demanded, the jurisdiction is to be determined by the amount of the relief additional or otherwise sought to be obtained by the appeal, having reference to the judgment below. 5. On appeal by defendant, the sum of the judgment against him governs the jurisdiction when no affirmative relief is asked. 6. The amount stated in the body of the declaration, and not merely the damages alleged on the prayer for judgment at its conclusion, must be considered in determining the question of jurisdiction. 7. The previous eases bearing on this subject considered and reviewed.

'The distinction constantly maintained is this: Where the plaintiff sues for an amount exceeding $2,000, and the ad damnum exceeds $2,000, if by reason of any erroneous ruling of the court below, the plaintiff recovers nothing, or less than $2,000, there the sum claimed by the plaintiff is the sum in controversy for which a writ of error will lie. But if a verdict is given against the defendant for a less sum than $2,000, and a judgment passes against him accordingly, there it is obvious that there is, on the part of the defendant, nothing in controversy beyond the sum for which the judgment was given; and consequently he is not entitled to any writ of error. We cannot look beyond the time of the judgment in order to ascertain whether a writ of error lies or not.' The rule as thus stated by Mr. Justice STORY, was cited in Walker v. U. S. 4 Wall. 163, and in Merrill v. Patty, 16 Wall. 345. But these were cases in which the question was as to the right of a defendant to bring up for review a judgment against himself for less than $2,000. In Ryan v. Bindley, 1 Wall. 66, the plaintiff below sued for $2,000, and the defendant pleaded set-off to the amount of $4,000. Under such a plea, if the set-off had been sustained, the defendant would have been entitled to a judgment for the difference between the amount of his claim and that established by the plaintiff. The plaintiff recovered a judgment for $575.85, and the defendant brought a writ of error, upon which jurisdiction was sustained because the defendant sought to defeat the judgment against him altogether, and to recover a judgment in his own favor and against the plaintiff for at least two thousand dollars, and possibly four thousand. Thus the matter in dispute in this court exceeded $2,000. In Pierce v. Wade, 100 U. S. 444, the action was replevin for cattle. A judgment was rendered in favor of the plaintiffs for the most of the cattle taken on the writ, but against them for $1,400, the value of some that were taken which did not belong to them. They brought the case here by writ of error, but the writ was dismissed on the ground that the matter in dispute was only the part of the cattle for which judgment had been rendered against the plaintiffs, the court remarking that 'the plaintiffs recovered everything else which they claimed, and the judgment against them is less than $5,000.' In Lamar v. Micou, 104 U. S. 465, where the appeal was taken by a defendant from a decree against him for less than $5,000, it was held that if the set-off or counter-claim relied on would only have the effect of reducing the amount of the recovery, without entitling the defendant to a decree in his own favor, there was no jurisdiction. We understand that Wilson v. Daniel is overruled by Gordon v. Ogden, in which Chief Justice MARSHALL states the opinion of the court to be that 'the jurisdiction of the court depends upon the sum in dispute between the parties, as the case stands upon the writ of error,' and that Wilson v. Daniel was not followed because 'a contrary practice had since prevailed.' It is undoubtedly true that until it is in some way shown by the record that the sum demanded is not the matter in dispute, that sum will govern in all questions of jurisdiction, but it is equally true that when it is shown that the sum demanded is not the real matter in dispute, the sum shown, and not the sum demanded, will prevail. Lee v. Watson, 1 Wall. 337; Schacker v. Hartford Fire Ins. Co. 93 U. S. 241; Gray v. Blanchard, 97 U. S. 565; Tintsman v. National Bank, 100 U. S. 6; Banking Ass'n v. Insurance Ass'n, 102 U.S. 121. Under this rule it has always been assumed, since Cooke v. Woodrow, supra, that when a defendant brought a case here, the judgment or decree against him governed our jurisdiction, unless he had asked affirmative relief, which was denied; and this because, as to him, jurisdiction depended on the matter in dispute here. As the original demand against him was for more than our jurisdictional limit, and the recovery for less, the record shows that he was successful below as to a part of his defense, and that his object in bringing the case here was not to secure what he had already got, but to get more. As to him, therefore, the established rule is that, unless the additional amount asked for is as much as our jurisdiction requires, we cannot review the case. We are unable to see any difference in principle between the position of a plaintiff and that of a defendant as to such a case. The plaintiff sues for as much as, or more than, the sum required to give us jurisdiction, and recovers less. He does not, any more than a defendant, bring a case here to secure what he has already got, but to get more. If we take a case for him when the additional amount he asks to recover is less than we can consider, he has 'an advantage over his antagonist,' such as, in the language of Chief Justice ELLSWORTH, supra, 'it is not to be presumed it was the intention of the legislature to give.' Such a result ought to be avoided, and it may be by holding, as we do, that, as to both parties, the matter in dispute, on which our jurisdiction depends, is the matter in dispute 'between the parties as the case stands upon the writ of error' or appeal; that is to say, as it stands in this court. That was the question in Wilson v. Daniel, where it was held that, to avoid giving one party an advantage over another, it was necessary to make jurisdiction depend 'on the matter in dispute when the action was instituted.' When, therefore, that case was overruled in Gordon v. Ogden, and it was held, as to a defendant, that his rights depended on the matter in dispute in this court, we entertain no doubt it was the intention of the court to adopt as an entirety the position of Mr. Justice IREDELL in his dissenting opinion, and to put both sides upon an equal footing. Certainly it could not have been intended to give a plaintiff any advantage over a defendant, when there is nothing in the law to show any such superiority in position. Under this rule we have jurisdiction of a writ of error or appeal by a plaintiff below when he sues for as much as or more than our jurisdiction requires and recovers nothing, or recovers only a sum which, being deducted from the amount or value sued for, leaves a sum equal to or more than our jurisdictional limit, for which he failed to get a judgment or decree. And we have jurisdiction of a writ of error or appeal by a defendant when the recovery against him is as much in amount or value as is required to bring a case here, and when, having pleaded a set-off or counter-claim for enough to give us jurisdiction, he is defeated upon his plea altogether, or recovers only an amount or value which, being deducted from his claim as pleaded, leaves enough to give us jurisdiction, which has not been allowed. In this connection it is to be remarked that the 'amount as stated in the body of the declaration, and not merely the damages alleged, or the prayer for judgment, at its conclusion, must be considered in determining whether this court can take jurisdiction.' Lee v. Watson, and the other cases cited in connection therewith, supra. The same is true of the counter-claim or set-off. It is the actual matter in dispute as shown by the record, and not the ad damnum alone, which must be looked to. Applying this rule to the present case, it is apparent we have no jurisdiction. The original matter in dispute was $3,000. On appeals from the supreme court of the District of Columbia we have jurisdiction only when the matter in dispute exceeds $2,500. Hilton recovered below one-half of the $3,000. It follows that as to him the matter in dispute in this court is only $1,500. The appeal of Hilton is dismissed for want of jurisdiction, and that of Devlin for want of prosecution.

107.US.591

Where the complainant prays for the appointment of a receiver of mortgaged railroad property, pending proceedings for foreclosure, the court, in the exercise of a sound discretion, may, as a condition of granting the prayer, impose such terms touching the application of the income arising during the receivership to the payment of outstanding debts for labor, supplies, equipment, or permanent improvement of the property, as under the circumstances of the case appear reasonable. Fosdick v. Schall, 99 U. S. 2.35, and Miltenberger v. Logansport Railway Co., 106 id. 286, cited and approved.

It seems to us that the question certified is fully disposed of by the case of Fosdick v. Schall, 99 U. S. 251, where it was said: 'We have no doubt that when a court of chancery is asked by railroad mortgagees to appoint a receiver of railroad property, pending proceedings for foreclosure, the court, in the exercise of a sound judicial discretion, may, as a condition of issuing the necessary order, impose such terms in reference to the payment from the income during the receivership of outstanding debts for labor, supplies, equipment, or permanent improvement of the mortgaged property as may, under the circumstances of the particular case, appear to be reasonable.' To this we adhere, and, in our opinion, the right to impose terms does not depend alone on whether current earnings have been used to pay the mortgage debt, principal or interest, instead of current expenses. Miltenberger v. Logansport, C. & P. Ry. Co. decided at the present term, [1 SUP. CT. REP. 140.] Many other circumstances may make such an order reasonable, and this case furnishes a striking example. The first default in the payment of interest under the mortgage occurred in October, 1873. The bondholders did not see fit to take possession, as they had the right to do, when the default had continued for six months. On the contrary, notwithstanding no payments of interest were made, they allowed the company to operate the road and incur obligations therefor until December, 1877. This was evidently in the hope that their condition would be improved by the delay, for, to effect the forbearance they established an agency and incurred expenses to an amount much larger than the $3,000 reimbursed by the company. Prior to the appointment of the receiver the gross earnings do not appear to have been enough to pay expenses, but afterwards they yielded a very considerable surplus. There cannot be a doubt that it was for the interest of the bondholders that the road should be kept in operation, and as they did not see fit to take possession while it could only be operated at a loss, it was certainly not an abuse of judicial discretion for the court to order, as a condition of granting their application for a receiver, that debts incurred by the company in thus protecting the security should be paid from the income of the receivership, if, in consequence of an increase of revenue, it could be done. The income of the receivership, instead of being applied in accordance with the order to pay the debts for the supplies and labor, was used with the consent, and, it may fairly be inferred, at the request, of the bondholders, to buy additional grounds, rolling stock, etc., and to make permanent improvements, thus adding to the value of the property, which was afterwards sold. There is nothing whatever to indicate that in thus using the income it was the intention of the court to revoke the original order. It seems to have been found, in the administration of the cause, that by using the income to add to the value of the fixed property the interests of all parties would be promoted, and so the fund, which in equity belonged to the labor and supply creditors, was for the time being diverted from them and put into improvements and additions, the proceeds of which are now in court. It is not to be presumed that this diversion would have been authorized if the value of the property added to and improved was not to be correspondingly increased. Clearly, therefore, on the face of the transaction, the fund in court represents in equity the income which belongs to the labor and supply creditors as well as the mortgage security, and there was no impropriety in appropriating it as far as necessary to pay the creditors specially provided for when the receiver was appointed. Such a practice, under proper circumstances, was approved in Fosdick v. Schall, ubi supra, and seems to us eminently just. There were other questions certified in the case, but as we answer the one which has been particularly stated in the affirmative, and nothing more is needed to sustain the decree, the others will not be considered further than has already been done incidentally. The decree of the circuit court is affirmed.

106.US.607

1. Bounty was not allowed by the act of Congress of June 30,1864, c. 174, where vessels of the enemy were, during the rebellion, destroyed by the combined action of the sea and land forces of the United States. 2. Property seized upon any waters of the United States, other than bays or harbors on the sea-coast, was not maritime prize, nor was any bounty paid by the United States for the destruction thereof.

Two objections are made to the recovery of the bounty claimed by the libelants: one, that the destruction of the confederate vessels was effected by the joint action of the army and navy; the other that it took place on the inland waters of the United States. For the determination of the first of these objections it will be necessary to consider the movements of the fleet under command of Admiral Porter, immediately preceding the capture of Richmond. The record enables us to do this, although officers present on the vessels differ in their recollection of dates. On the morning of April 2, 1865, Gen.Lee commanding the enemy's forces around Richmond, informed the confederate authorities that he should immediately withdraw his lines and evacuate the city. The withdrawal and evacuation took place on the evening of that day. Information of his purpose was undoubtedly communicated to Admiral Porter soon after it was generally known in Richmond, which was before noon. At that time there were in James river, for some miles below Richmond, obstructions which the confederates had placed to prevent the ascent of the Union fleet. Vessels filled with stone had been sunk and numerous torpedoes planted in the stream. Batteries had also been erected along the river. Some of the obstructions were just above the lower end of what was known as Dutch Gap canal, about 16 miles by the river from Richmond, which were originally placed there by the confederates, and afterwards maintained by the forces of the United States. Two miles above them was Howlett's confederate battery. Eight miles above the Dutch Gap canal was Chaffin's bluff, and one mile above that on the opposite side of the river was Drury's bluff, seven miles below Richmond. Gen. Lee's lines extended across the river between the two bluffs, and below them. Above the obstructions near Dutch Gap canal several confederate vessels of war were stationed. When Gen. Lee was compelled to abandon his lines, orders were given that the batteries on James river should be withdrawan and the confederate vessels destroyed. As soon as Admiral Porter, on the second of April, was informed, or had reason to believe that Gen. Lee intended to retreat from Richmond, he gave orders for the removal of the obstructions in the river, and for his vessels to open fire on the confederate batteries within range and to push on through the obstructions as fast as they were carried away, first sending boats ahead to remove the torpedoes. These orders were carried out with great gallantry and spirit; a heavy fire was opend on the batteries, and during the following night a channel was cut through the obstructions. Soon after the fleet opened fire, the enemy, to prevent the capture of his vessels, commenced destroying them, setting fire to some of them and blowing up others. On the next day, the 3d, the fleet passed through the obstructions and moved up to Drury's bluff, capturing one of the enemy's vessels which had not been destroyed—the iron-clad ram Texas. Another of the enemy's vessels—the Beaufort—was subsequently captured further up the river. At Drury's bluff the vessels were detained by the obstructions until the 4th. On that day the admiral, accompanied by President Lincoln, proceeded up to Richmond. Although in the movements of the admiral's fleet in its ascent of James river and in its attack on the batteries he was not assisted by the actual presence of any portion of the army of the United States, so that the capture of the two vessels—the Texas and the Beaufort—and the destruction of the other vessels may, in that sense, be said to have been effected by his fleet alone, yet without the aid of the army the result mentioned would not probably have been accomplished. Certainly, its movements contributed most essentially to the success of the fleet. For several months it had been lying near Richmond under the command of Gen. Grant, with the avowed purpose of capturing that city and of destroying the confederate forces. The result of the battle of Five Forks, on the first of April, satisfied the confederate commander that he could not hold his lines and protect Richmond. The withdrawal of his troops and the evacuation of Richmond followed. Had they not been thus forced to retire and his lines had continued to cross James river between Chaffin's bluff and Drury's bluff, it would have been almost if not quite impossible for the fleet of Admiral Porter to ascend the river. The fire of the shore batteries, with the assistance of the confederate troops near by, would have checked any advance, supported as they would have been by the confederate vessels and the torpedoes in the stream. It is plain, therefore, that whatever was accomplished by the fleet of the admiral in James river on the second and third days of April, 1865, must be considered as the result of the co-operative action of both the army and the navy. It matters not that the movements of the army were miles distant from the operations of the fleet; they relieved that fleet from resistance which might and probably would have defeated any attempt to ascend the river above the shore batteries, and destroy the armed vessels of the enemy. Prize money, or bounty in lieu of it, is not allowed by the laws of congress where vessels of the enemy are captured or destroyed by the navy with the co-operation of the army. To win either the navy must achieve its success without the direct aid of the army, by maritime force only. No pecuniary reward is conferred for anything taken or destroyed by the navy when it acts in conjunction with the army in the capture of a fortified position of the enemy, though the meritorious service and gallant conduct of its officers and men may justly entitle them to honorable mention in the history of the country. The Siren, 13 Wall. 389. The second objection to a recovery, that the destruction of the confederate vessels was effected upon inland waters of the United States, is equally clear if the term 'property,' used in the seventh section of the act of 1864, can be construed—as counsel seem to take for granted—to embrace public vessels of the enemy. That act provides, among other things, for the collection of captured and abandoned property, and is in addition to the act on that subject of March 12, 1863. 13 St. at Large, 377; 12 St. at Large, 320. The seventh section declares—— 'That no property seized or taken upon any of the inland waters of the United States by the naval forces thereof, shall be regarded as maritime prize; but all property so seized or taken shall be promptly delivered to the proper officers of the curts, or as provided in this act and in the said act approved March 12, 1863.' The term 'inland,' as here used, was evidently intended to apply to all waters of the United States upon which a naval force could go, other than bays and harbors on the sea-coast. In most instances property of the enemy on them could be taken, if at all, by an armed force without the aid of vessels of war. These were seldom required on such waters, except when batteries or fortified places near them were to be attacked in conjunction with the army. As observed by the court in the case of The Cotton Plant, congress probably anticipated, in vie of the state of the war when the act was passed, that most of the captures on the rivers would be made by the army. 10 Wall. 577. James river is an inland water in any sense which can be given to the term 'inland.' It lies within the body of counties in Virginia. For miles below Richmond and below the obstructions mentioned a person can see from one of its banks what is done on the other. Rivers across which one can thus see are inland waters. It matters not that the tide may ebb and flow miles above their mouths; that fact does not make them any part of the sea or bay into which they may flow, though they may be arms of both. U.S. v. Grush, 5 Mason, 290. Decree affirmed.