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108.US.30	1. On the merits of the motion there is no essential difference between this case and the case of the St. Louis, Iron 3lountain and Southern R. R. Co. v. The Southern IExpress Company, just decided. Reference to the master to take and state an account between the parties as to the compensation during the litigation and up to its final termination relates to matters of administration not involving the merits. 2. A certificate that the transcript is a "' true, full and perfect copy from the record of all the proceedings in the suit" is sufficient to give jurisdiction. 3. If the certificate is not correct, the remedy is by certiorari. 4. Where on the face of the decree it appears that a case was disposed of on demurrer to the bill, the evidence on Me is not necessary for the hearing of the bill. 5. When a record has not been printed, and parties do not agree as to its contents, certiorari may be granted, reserving all questions till return.	This motion to dismiss is made because, as is alleged, (1) the decree appealed from is not a final decree; and (2) the transcript is not properly certified. 1. As to the decree. The case is in some particulars different from that of the St. Louis, I. M. & S. Ry. Co. v. Southern Express Co., just decided, but in our opinion the differences do not materially affect the present question.* Ante, 6. The decree in this case, as in that, requires the railway company to carry for the express company, and fixes the rate of compensation, 'until the further order or decree of this [circuit] court.' In this case, the reference to the master 'to take and state an account between the parties as to the compensation that should be and has been paid during the litigation, and up to the final termination thereof,' was entered before or at the time of the decree from which the appeal was taken. Still, in this, as in that, the reference is in respect to matters affecting the administration of the cause, and does not involve the merits. The reservation of power to change the rates operates only on the future, and was evidently intended for the purpose of enabling the court to act in case a change should be required. As the decree stands, the express company can require the railway company to carry at the rate which has been fixed. 2. As to the certificate. The clerk certifies the transcript sent up to be 'a true, full, and perfect copy from the record of all the proceedings in the suit.' Certainly this is sufficient for all the purposes of jurisdiction. If, in point of fact, the certificate is not true, the remedy is by certiorari to supply deficiencies, and not by motion to dismiss. To meet this view of the case the appellee suggests diminution, and asks for a certiorari to bring up 'the evidence taken before * * * William H. Rossington, as examiner, * * * remaining on file in the office of the clerk, constituting the exhibits, depositions, and proofs used on the argument of the cause in the * * * circuit court.' Upon the face of the decree it appears that the case was disposed of on demurrer to the bill. If that be the truth, the evidence on file is not necessary for the hearing of the appeal, but as the record, which is here, has not been printed in full, and the parties do not agree in their statements as to what it contains, we will grant the certiorari asked for, reserving all further questions until the return is made.
109.US.398	1. The legislative grant of a privilege to erect, establish and construct gas works, and make and vend gas in a municipality for a term of years, does not exempt the grantees from the imposition of a license tax for the use of the privilege conferred. 2. In order to,e stablish a legislative contract to exempt from taxation, the stat. ute must be explicit and unmistakable, and without doubtful words. 3. The Constitution of the United States does not profess in all cases to protect against unjust or oppressive taxation.	This is a writ of error to the supreme court of Tennessee. The question presented is whether the statute of the state under which the defendant assessed a license tax of $250 against plaintiff in error is void, because it violates the contract found in the charter of the company. This charter was enacted November 20, 1851, and, after giving the name of the new corporation and the names of the corporators, it refers for the rights, privileges, powers, and restrictions of the company to the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth sections of an act incorporating the Nashville Gas-light Company, passed November 21, 1849, and declares that those sections, not inconsistent with the first section of this act, shall shall apply to the Memphis Gas-light Company as fully and completely as though the same were fully set forth and incorporated. For any contract of exemption from taxation we must therefore look to the provisions of those sections in the charter of the Nashville Company. These sections contain the usual powers necessary for the successful conduct of the business of the company, its organization, its shares of stock, mode of payment, laying pipes in the street, and the like, and after a careful examination of them we are unable to see anything whatever which expresses a contract for any limitation of the power of the legislature to tax the company or its property. Such was the opinion of the supreme court of Tennessee, delivered on rendering the judgment to which this writ of error is taken. And though this court is bound for itself to inquire in every such case as this whether there existed a contract which might be be impaired, on which subject the court has very recently, at the present term, collated the authorities in the case of Louisville & N. R. Co. v. Palmes, ante, 193, we are unable to discover any reason for dissenting from the opinion of the supreme court of Tennessee on that point. The section of the charter on which plaintiff's counsel mainly rely as showing a contract is the fifth section, which reads as follows: 'Sec. 5. The said company shall have the privilege of erecting, establishing, and constructing gas-works, and manufacturing and vending gas in the city of Nashville, by means of public works, for a term of fifty years from and after the date of this act. A reasonable price per thousand feet for gas shall be charged in the case of private individuals, to be regulated by the prices in other south-western cities; and for public lights, such sum as may be agreed upon by the company and the public authorities of Nashville: provided, said company shall never charge more than one cent for every cubic foot of gas used, as may be indicated by the gas-meter, or computed by the ordinary rules in such cases; nor shall they ever charge the corporation of the city of Nashville more per cubic foot than they shall be getting at the same time from the majority of the inhabitants of the city using such gas.' The argument of counsel is that if no express contract against taxation can be found here it must be implied, because to permit the state to tax this company by a license tax for the privilege granted by its charter is to destroy that privilege. But the answer is that the company took their charter subject to the same right of taxation in the state that applies to all other privileges and to all other property. If they wished or intended to have an exemption of any kind from taxation, or felt that it was necessary to the profitable working of their business, they should have required a provision to that effect in their charter. The constitution of the United States does not profess in all cases to protect property from unjust or oppressive taxation by the states. That is left to the state constitutions and state laws. In the case of the Erie R. Co. v. Pennsylvania, 21 Wall. 492, it was said: 'This court has in the most emphatic terms and on every occasion declared that the language in which the surrender (of the right of taxation) is made must be clear and unmistakable. The covenant or enactment must distinctly express that there shall be no other or further taxation. A state cannot strip herself of this most essential power by doubtful words. It cannot by ambiguous language be deprived of this highest attribute of sovereignty. The principle has been distinctly laid down in each of the cases referred to. It has never been departed from.' See, also, Providence Bank v. Billings, 4 Pet. 514; Herrick v. Randolph, 13 Vt. 531; North Missouri R. Co. v. Maguire, 20 Wall. 40; Delaware R. R. Tax, 18 Wall. 206. There is in this case no language which attempts to exempt plaintiff from taxation, nor is there even the most remote implication of such exemption. The judgment of the supreme court of Tennessee is affirmed.
108.US.282	1. Ottawa v. Cary, ante, 110, reaffirmed. 2. Unless power has been given by the legislature to a municipal corporation to grant pecuniary aid to railroad corporations, bonds issued for that purpose, and bearing evidence of the purpose on their face, are void, even in the hands of bonafide holders. 8. Corporate ratification, without authority from the legislature, cannot make a municipal bond valid, which was void when issued for want of legislative power to make it.	This was a suit brought to recover the amount of certain coupons cut from bonds issued by the city of Shreveport, Louisiana, which appear on their face to have been issued 'in aid of the Texas and Pacific Railroad Company.' In point of fact, the bonds were used to buy lands to be donated to the railroad company as a site for depots and machine-shops. We have had occasion at this term, in the case of City of Ottawa v. Carey, ante, 361, to repeat and apply a rule which has always been recognized and adhered to in this court, to the effect that, unless power has been given by the legislature to a municipal corporation to grant pecuniary aid to railroad corporations, all bonds of the municipality, issued for such a purpose, and bearing evidence of that fact on their face, are void even in the hands of bona fide holders, and this whether the people voted the aid or not. Every purchaser of such a bond is chargeable in law with notice of the want of power in the municipal authorities to bind the body politic in that way. This principle is elementary. In the present case it is not pretended that any such power was expressly granted to the city of Shreveport, and we find no provision of the charter from which anything of the kind can be implied. The authority to purchase and hold property of all kinds relates only to such property as is needed for municipal purposes. It is a matter of no importance that the city employed agents to sell the bonds, or that its law officer gave an opinion in favor of their validity, or that they have been recognized in official statements as binding obligations, or that taxes have been levied to pay either principal or interest. Corporate ratification, without authority from the legislature, cannot make a municipal bond valid which was void when issued for want of legislative power to make it. These bonds carried on their face full notice to every purchaser that they were issued for a purpose not authorized by law; that is to say, to aid a railroad corporation. This whole subject was so fully considered in City of Ottawa v. Carey, supra, that we deem it unnecessary to discuss the subject further now. In Edey v. Shreveport, 26 La. Ann. 636, which is relied upon as establishing the power of the city to issue the bonds, the question was whether the vendor of the land, which had been only partly paid for out of the proceeds of the bonds, could enforce his mortgage and vendor's privilege on the land to recover the balance of purchase money due him, and it was decided that he could. This is no more than was in effect held by this court at the present term in City of Parkersburg v. Brown, 1 SUP. CT. REP. 442. All that was said by the supreme court of Louisiana must be construed in connection with the question then up for decision. There is not a word about the validity of the outstanding bonds, nor of the right of the holders to recover upon them in a suit against the city. The whole effect of the decision is that the city could not keep the land as against the vendor without paying for it. That the court would have held the bonds void, if it had been called on to decide that question, is shown beyond all doubt in the case of Wilson v. Shreveport, 29 La. Ann. 673, where the power to issue bonds, apparently of a much less objectionable character, was expressly denied. The judgment is affirmed.
109.US.117	The first claim of letters-patent No. 147,848, granted February 10th, 1874, to the Double-Pointed Tack Company, as assignee of Purches Miles, the inventor, for an "improvement in bail-ears," namely, "1. The Compound staple-fastening d, for bails, made with the diagonally cut penetrating points 2 and 3, loop 4, and body 5, said diagonally cut points being positioned as set forth, so as to bend upwardly in driving into the wood, as set forth," does not, in view of what existed before in the art, set forth any patentable invention. It was commonly known that the effect of a diagonal cut on a penetrating point was to force the point, in being driven, in a direction away from the cut. Double-pointed staples, with a diagonal cut on each point, but the diagonal cut on one point on the upper and outer side, and on the other point on the lower and outer side, as the staple was driven, were old, the effect in driving being to bring the points together ; and there was nothing more than mechanical skill in putting the diagonal cuts on the same side of each leg, so as to incline both points, in driving, in the same direction. The second claim of the patent, namely: "2. The convex metallic washer e, in combination with the compound ball-fastening staple d, having upwardly penetrating points 2, 3, and loop 4, as and for the purposes specified," does not set forth a patentable combination, but only an aggregation of parts. Neither the staple nor the washer affects or modifies the action of the other.	The gist of the invention set forth in the descriptive part of the specification, so far as the first claim is concerned, is to cut the two penetrating ends of the wire diagonally, and in such a way that, while the staple is being driven, the cut faces will both of them be on the lower side, and the two penetrating ends will both of them incline upwardly. It is shown to have been commonly known that the effect of a bevel or a diagonal cut on a penetrating point was to force the point, in being driven, in a direction away from the bevel or cut. Double-pointed staples, with a diagonal cut on each point, but the diagonal cut on one point on the upper and outer side, and on the other point on the lower and outer side, as the staple was driven, were old. They were used to secure wire screens as guards for windows. The effect in driving them was to bring the two points together, by throwing them towards each other, through their movements in opposite directions. The mechanical action embodied was the forcing each point, in being driven, in a direction away from its bevel or cut. The result was that the legs of the staple were bent and came together, and were thus clinched in the driving, and it was more difficult to pull out the staple than if the legs had gone in without bending. In view of this state of the art, there was no patentable invention, and nothing more than mechanical skill, in putting the diagonal cuts or bevels on the same side of each leg of the staple, so as to give both points, in driving, an inclination in the same direction, that direction being one away from both bevels, and in using the device to fasten a bail. This was the view taken by the circuit court. There is no suggestion in the specification or claims as to any invention or novelty in the form of the loop, or of the body, or in the relative lengths of the two penetrating points, or as to the angles formed by such points with the loop, or the body, before driving. The so cutting the penetrating ends that they will both of them incline upwardly, in driving, is the only feature of invention set forth, and to this the patent must be limited, so far as the first claim is concerned. The second claim is for the washer in combination with the staple of the first claim. This is not a patentable combination. There is only an aggregation of parts when the staple is used with the washer. The use of the washer is stated in the specification to be to keep the eye at the end of the bail from contact with the wood or the paint thereon. The upper point or leg of the staple goes through the eye and through the center of the washer; but the presence of the washer does not modify or affect the action of the staple, nor does the staple modify or affect the action of the washer. The washer keeps the eye of the bail from rubbing the wood of the pail. It would have the same effect if it were fastened in some other way than by having the leg of the staple pass through it, and the staple would in such case have the same operation which it now has. The decree of the circuit court is affirmed.
108.US.130	.Hyde v. Ruble, 104 U. S. 407, that "a suit cannot be removed from a State court to the circuit court unless either all the parties on one side of the controversy are citizens of different States from those on the other side, or there is in such suit a separable controversy wholly between some of the parties, who are citizens of different States which can be fully determined as between them" adhered to.	The petition for removal was filed before answer, and we must look, therefore, to the bill alone to determine what the controversy is. From this it appears that Henry M. Loud claims that the defendants Wasey, Henry M. Loud, and Whiting hold certain real and personal property in trust to secure a debt owing by him and the defendant Gay to the defendant Winchester; and, after the debt is paid, for the use and benefit of himself and Gay. He asks for an accounting by the trustees, the removal of Wasey and Whiting, and the appointment of others in their places; and, after the debt is paid, a conveyance of what remains of the trust property in accordance with the terms of the trust. The case presents but a single controversy, although it involves the determination of several questions. It may be that Winchester is the principal defendant in interest, but full and complete relief cannot be afforded in respect to the single cause of action, to-wit, the trust, without the presence of all the parties to the suit. According to the averments in the bill, all the defendants except Henry M. Loud deny the existence of the trust, and, if that should be established, all the defendants are directly interested in the relief that is asked. The case falls clearly within the rule stated in Hyde v. Ruble, 104 U. S. 407. The order remanding the suit is affirmed.
109.US.194	A defendant, against whom a judgment has been rendered on default by a circuit court of the United States in an action at law, cannot maintain a bill in equity to avoid it, upon the ground that the plaintiff at law falsely and fraudulently alleged that the parties were citizens of different States, without showing that the false allegation was unknown to him before the judgment. Upon a negotiable promissory note, made by an agent in his own name, and not disclosing on its face the name of the principal, no action lies against the principal. In an action at law, the declaration alleged that the plaintiff sold land to a third person, who gave his notes for the purchase money, secured by mortgage of the land ;.t hat afterward the defendant, in a suit by him against that person, claimed the ownership of the land, and alleged that the other person, acting merely as his agent, illegally made the purchase in his own name, and that he was liable and ready to pay for the land ; I' he was thereupon adjudged to be the owner of the land, and took possession thereof ; and that by reason of the premises the defendant was liable to the plaintiff in the full amount of the notes: Held, that the declaration showed no cause of action, even under art. 1890 of the Civil Code, and art. 85 of the Code of Practice of Louisiana. A judgment, rendered on default, upon a declaration setting forth no cause of action, may be reversed on writ of error, and the case remanded with directions that judgment be arrested.	United States for the District of Louisiana.] v. [Appeal from the Circuit Court of the United November 12, 1883. These two cases have been argued together. Eliza A. Quitman, the defendant in error and appellee, having died since the judgment below, William S. Lovell, her executor, has appeared in her stead. In the action at law, she filed a petition against George D. Cragin, in the circuit court of the United States for the district of Louisiana, alleging that she was a citizen of New York and he was a citizen of Louisiana; that on the thirty-first of January, 1878, she sold a plantation to Orlando P. Fisk for the price of $22,500, of which the sum of $4,500 was paid in cash, and for the rest of which nine notes of Fisk were given for $2,000 each, payable in successive years, and secured by a mortgage of the estate; that Cragin had paid the first three of the notes, and the petitioner, by foreclosure and sale of the estate under the mortgage, had obtained the sum of $10,447.05, to be credited on the remaining notes under date of May 1, 1874; and further alleging as follows: 'Now your petitioner represents that George D. Cragin is and was the real owner of said property, and liable to your petitioner, for the following reasons, viz.: 'That subsequently to the said purchase of property by said Fisk, by a certain proceeding filed in this honorable court, the said Cragin did claim the entire ownership of the said property, and did claim that the purchase made in the name of the said Fisk was illegally entered in his own name by said Fisk, who was acting merely as the agent of said Cragin, and that the amount of the purchase price of said property paid in cash, as well as the first and second notes aforesaid, were made by said Fisk with the money of said Cragin, and that he, said Cragin, was liable for and ready to pay for said property; that thereafter, in due course of law, and after proper proceedings, the said Cragin was adjudged by this honorable court, by final decree, to be the owner of said property, and the matters and things in said petition contained were found to be true and correct. 'That pending said proceedings the said George D. Cragin was and in said case appointed the receiver of the said plantation, so sole by your petitioner as aforesaid, and that, acting as such receiver, and subsequently as such owner of said plantation, he did remove therefrom all the movable property thereon, and which existed thereon at the date of the sale by your petitioner to said Fisk, of a value exceeding $1,000, and did lay waste and dilapidate the said property, to benefit his adjoining plantation, and to the detriment of your petitioner's rights. 'Petitioner further avers, that by reason of the causes aforesaid the said George D. Cragin is liable and indebted unto your petitioner in the full amount of said notes, less the credit due as aforesaid, for which amicable demand has been made without avail.' The record shows that Cragin was served with process in Louisiana, and, not appearing, was defaulted, and judgment was rendered for the plaintiff in the sum claimed, (which was shown by computation and agreement of counsel to be $6,888.40,) and the defendant sued out a writ of error, which is the first of the cases before us. The other case is an appeal from a decree of the same court, dismissing upon demurrer a bill in equity, filed by Quitman against Cragin to annul and avoid the judgment aforesaid and to restrain the issue of execution thereon. The bill set forth the proceedings in the suit at law; and its only other material allegations were, that the circuit court had no jurisdiction of that suit, because both parties were citizens of New York; and that Quitman, knowing that fact, falsely and fraudulently alleged Cragin to be a citizen of Louisiana, and illegally and unjustly obtained judgment by default against him. Mr. J. D. Rouse and Mr. William Grant, for Cragin. [Argument of Counsel from pages 196-197 intentionally omitted] Mr. Joseph P. Hornor, and Mr. W. S. Benedict for Lovell. [Argument of Counsel from page 197 intentionally omitted] It is quite clear that the bill in equity was rightly dismissed, because it contains no allegation that Cragin did not know, before the judgment against him in the suit at law, that the plaintiff in that suit alleged that he was a citizen of Louisiana. If he did then know it, he should have appeared and pleaded in abatement; and equity will not relieve him from the consequence of his own negligence. Jones v. League, 18 How. 76; Crim v. Handley, 94 U. S. 652. The decree in the suit in equity must therefore be affirmed. But it is equally clear that the judgment at law is erroneous. The petition shows no privity between the plaintiff and Cragin. It alleges no promise or contract by Gragin to or with the plaintiff. The mere description of the notes, received by the plaintiff, as 'notes of Fisk,' does not show that they were not negotiable instruments, but on the contrary, in the connection in which it is used, and applied to notes given for the purchase money of land, and secured by mortgage thereof, designates (as was assumed by both counsel at the argument) negotiable promissory notes, bearing no name but that of Fisk as maker; and on such notes no action will lie against any other person. Nash v. Towne, 5 Wall. 589, 703; Williams v. Robbins, 16 Gray, 77; In re Adansonia Fibre Co. L. R. 9 Ch. 635; Daniels v. Burnham, 2 La. 243, 245. The case does not come within the decisions in Mechanics' Bank of Alexandria v. Bank of Columbia, 5 Wheat. 326, and in Metcalf v. Williams, 104 U. S. 93, in each of which the name of the principal appeared upon the face of the note. If the action is treated, not as an action upon the notes themselves, but as an action to recover the amount of the notes, by reason of a subsequent agreement of Cragin to pay them, the plaintiff fares no better. The only allegations touching the relation of Cragin to these notes are that, in a suit by him against Fisk, he alleged that Fisk, in purchasing the land, acted merely as his agent, and that he owned the land, and was liable and ready to pay for it; and that he was thereupon adjudged to be the owner of the land and took possession thereof. If this amounted to a promise to any one, it was not a promise to the plaintiff, nor even a promise to Fisk to pay to the plaintiff the amount of the notes, but it was, at the utmost, a promise to Fisk to pay that amount to him, or to indemnify him in case he should have to pay it. It is therefore not within the provisions of the Louisiana Codes, cited in argument;1 and the defendant is liable to an action at law by Fisk only, and not by the plaintiff. Nat. Bank v. Grand Lodge, 98 U. S. 123; Exchange Bank v. Rice, 107 Mass. 37; McCauley v. Hagan, 6 Rob. (La.) 359. The final allegation, that by reason of the causes aforesaid the defendant is indebted and liable to the plaintiff, is a mere conclusion of law, which is not admitted by demurrer or default. Hollis v. Richardson, 13 Gray, 392. The judgment having been rendered on default, upon a declaration setting forth no cause of action, may be reversed on writ of error. McAllister v. Kuhn, 96 U. S. 87; Hollis v. Richardson, above cited; Louisiana State Bank v. Senecal, 9 La. 225. This court, on reversing a judgment of the circuit court, may order such judgment for either party as the justice of the case may require. Rev. St. § 701; Ins. Cos. v. Boykin, 12 Wall. 433. In the case at bar, the order, following the precedent of Slacum, v. Pomery, 6 Cranch, 221, will be that the judgment below be reversed, and the case remanded with directions that judgment be arrested. Ordered accordingly.
107.US.365	1. The fourth section of the act of the legislature of Illinois passed in 1819, touching a ferry across the Mississippi River from a place in Illinois to the city of St. Louis, Missouri, declares: "That the ferry established shall be subject to the same taxes as are now, or hereafter may be, imposed on other ferries within this State, and under the same regulations and forfeitures." Held, that the section provides for equality of taxation; that is to say, that the property of the ferry company shall be valued and taxed by the same rule as other like property, and be subject to the same exactions and forfeitures, but the company is not exempted from any license tax on its ferry-boats which the State or a municipal corporation thereunto authorized might impose. 2. The power to license is a police power, although it may also be exercised for the purpose of raising revenue. 3. A State has the power to impose a license fee, either directly or through one of its municipal corporations, upon the ferry-keepers living in the State, for boats which they own and use in conveying from a landing in the State passengers and goods across a navigable river to a landing in another State. 4. The levying of a tax upon such boats, although they are enrolled and licensed under the laws of the United States, or the exaction of a license fee by is not a regulation of commerce within the meaning of the Constitution of the United States, nor is such tax or fee a duty of tonnage if it be not graduated by the tonnage of the boats or by the number of times they cross the river or land within the limits of the State.	The first contention of the plaintiff in error is that the fourth section of the act of 1819, which declared that the Wiggins ferry should be subject to the same taxes as were then or might thereafter be imposed on other ferries within the state, and under the same regulations and forfeitures, and the charter of the Wiggins Ferry Company, which authorized said company to use and enjoy the ferry franchise granted to Samuel Wiggins, and to use and enjoy all the rights, privileges, and emoluments recited in the preamble of the act as having been granted to Wiggins, and his heirs and assigns, constituted a contract between the ferry company and the state, by which the power to tax the ferry company was limited to the imposition of the same taxes as were then or might thereafter be imposed on other ferries within the state; and that the charter of the city of East St. Louis, which authorized the city to regulate, tax, and license ferry-boats, and the ordinance of the city imposing a license tax on the ferry-boats of the company, impaired the obligation of the contract, and was therefore unconstitutional and void. We are of opinion that the charter of the company cannot be so construed as to exempt it from any taxation which the state might itself see fit to impose, or authorize to be imposed, by the city of East St. Louis. It is a rule of interpretation that every grant from the sovereign authority is, in case of ambiguity, to be construed strictly against the grantee and in favor of the government. Charles River Bridge v. Warren Bridge, 11 Pet. 420; Mills v. St. Clair Co. 8 How. 569; Attorney General v. Boston, 123 Mass. 460. This rule has been frequently applied by this court in cases where exemption from taxation was set up by corporations under the provisions of their charters. In Phila. & Wil. R. Co. v. Maryland, 10 How. 376, it was declared that 'the taxing power of a state is never presumed to be relinquished unless the intention to relinquish is declared in clear and unambiguous terms;' and in Jefferson Branch v. Skelly, 1 Black, 436, it was said that 'the language of this court has always been cautious and affirmative of the right of the state to impose taxes, unless it has been relinquished by unmistakable words, clearly indicating the intention of the state to do so.' So in Railroad Co. v. Commissioners, 103 U. S. 1, the chief justice, speaking for the court, declared: 'Grants of immunity from taxation are never to be presumed. On the contrary, all presumptions are the other way, and unless an exemption is clearly established all property must bear its just share of the burdens of taxation. These principles are elementary and should never be lost sight of in cases of this kind.' To the same effect see Railroad Co. v. Gaines, 97 U. S. 708. So in Bank v. Tennessee, 104 U. S. 493, this court declared, speaking by Mr. Justice FIELD: 'That statutes imposing restrictions upon the taxing power of a state, except so far as they tend to secure uniformity and equality of assessment, are to be strictly construed is a familiar rule. Against the power nothing is to be taken by inference or presumption. When a doubt arises as to the existence of the restriction it is to be decided in favor of the state.' If any serious doubt could arise concerning the interpretation of section 4 of the act of 1819, which the plaintiff in error contends was incorporated as a provision of its charter, the authorities cited would settle that doubt in favor of the right of the city of East St. Louis to impose the license tax complained of. But we are of opinion that the meaning of the section is not doubtful. The ferry of Wiggins had only one of its landings in the state of Illinois; the other was in the state of Missouri. The evident purpose of the section was to prevent the ferry, by reason of that circumstance, from escaping the same burdens of taxation as were imposed on ferries entirely within the state, and not to limit the taxing power of the legislature. It declares that the ferry of Wiggins shall be subject to the same taxes which were then or might thereafter be imposed on other ferries within the state, and under the same regulations and forfeitures, but it does not intimate that the state shall not impose on it such other taxes within its constitutional power as to it may seem fit. The most favorable construction for the plaintiff in error that could be placed upon its charter is that it provided for equality of taxation; that is to say, that the property of the ferry company should be valued and taxed by the same rule as other like property, and that the same exactions and forfeitures only as were imposed on like property, similarly situated, should be imposed on it. It certainly cannot be contended that its ferry on one of the great arteries of commerce, crossing the Mississippi river, and having each of its landings in a city, should only pay the same identical taxes and license fees as a country ferry over an inconsiderable stream. All that could be reasonably claimed under its charter is that it should be subjected to no higher state and municipal taxation and no greater license fees than other like property similarly situated. Giving the charter this construction, the plaintiff in error has no ground for complaint. It is not shown that the state and county taxation bears unequally on the ferry company. The ordinance of the city of East St. Louis makes no discrimination in favor of any other ferry similarly situated which it is authorized to regulate, tax, and license. The same license fee is exacted of all keepers of ferries within the corporate limits as are imposed upon the plaintiff in error. But the contention of the plaintiff in error seems to be that, under the terms of its charter, it is exempted from the imposition by the city of East St. Louis of any license fee whatever. So far from this being the fact, the charter, by the proviso to section 1, expressly reserved the power of any existing municipal corporation, or any that might be thereafter created within the limits of the ferry company's lands, to exercise all such powers of police as might be properly conferred on a city corporation. The power to license is a police power, although it may also be exercised for the purposes of raising revenue. We cannot say, as a matter of law, that when a municipal corporation is authorized 'to regulate, tax, and license ferry-boats,' the imposition of a license fee of $100 per boat is not within the power to regulate and license, and is consequently not within the police power. It follows, therefore, that the ordinance of the city of East St. Louis and the charter of the city, by which the ordinance is authorized, do not impair the obligation of any contract between the ferry company and the state. The next question presented by the assignments of error relates to the power of the state to impose a license fee either directly or through one of its municipal corporations upon the keepers of ferries living in the state, for boats owned by them and used in ferrying passengers and goods from a landing in the state, across a navigable river, to a landing in another state. It is insisted by the plaintiff in error that such an exaction is forbidden by the constitution of the United States, (1) because it is a regulation of commerce between the states and therefore, within the exclusive power of congress; and (2) because it is a duty of tonnage, which the state are forbidden by the constitution to lay without the consent of congress. In our opinion neither of these contentions is well founded. The levying of a tax upon vessels or other water-craft, or the exaction of a license fee by the state within which the property subject to the exaction has its situs, is not a regulation of commerce within the meaning of the constitution of the United States. Gibbons v. Odgen, 9 Wheat. 1: The Passenger Cases, 7 How. 283; Morgan v. Parham, 16 Wall. 471. In Gibbons v. Ogden it was settled that the clause of the constitution conferring on congress the power to tax, and the clause regulating and restraining taxation, are separate and distinct from the clause granting the power to congress to regulate commerce. In all of the cases just cited the right of a state to tax a ship owned by one of her citizens and having its situs within the state, although used in foreign commerce or in commerce between the states, was distinctly recognized. Thus, in The Passenger Cases, it was said by Mr. Justice McLEAN: 'A state cannot regulate foreign commerce, but it may do many things which more or less affect it. It may tax a ship or other vessel used in commerce the same as other property owned by its citizens. A state may tax the stages in which the mail is transported, but this does not regulate the conveyance of the mail any more than taxing a ship regulates commerce; and yet, in both instances, the tax on the property in some degree affects its use.' In the case of Transp. Co. v. Wheeling, 99 U. S. 273, this court sustained a tax levied by the city of Wheeling upon steam-boats used in navigating the Ohio river between that city and Parkersburgh, and the intermediate places on both sides of the river in the states of West Virginia and Ohio, the company whose property the boats were having its principal office in Wheeling. The exaction of a license fee is an ordinary exercise of the police power by municipal corporations. When, therefore, a state expressly grants to an incorporated city, as in this case, the power 'to license, tax, and regulate ferries,' the latter may impose a license tax on the keepers of ferries, although their boats ply between landings lying in two different states, and the act by which this exaction is authorized will not be held to be a regulation of commerce. And in the case of Fanning v. Gregoire, 16 How. 534, it was declared by this court, speaking of the charter of Fanning to ferry across the Mississippi river at Dubuque, that the exercise of commercial power by congress did not interfere with the police power of the states in granting ferry licenses. In the case of Conway v. Taylor's Ex'rs, 1 Black, 603, Mr. Justice SWAYNE, speaking for the court, in reference to a ferry established across the Ohio river, between the states of Ohio and Kentucky, declared that the power to establish and regulate ferries did not belong to congress under the power to regulate commerce, but belonged to the states, and lay within the scope of that immense mass of undelegated powers reserved by the constitution to the states. The authorities cited settle beyond controversy that the ordinance of the city of East St. Louis, imposing upon the keepers of ferries within its limits, and the act of the legislature by which such ordinance was authorized, do not invade the exclusive power of congress to regulate commerce conferred on it by the constitution. It is next insisted by plaintiff in error that the license fee exacted by the ordinance of the city of East St. Louis is a tonnage tax, which the states are forbidden to lay without the consent of congress. This contention has no ground to rest on. In the first place, the license fee is levied, not on the ferry-boat, but on the ferry-keeper. The first section of the ordinance declares that no person shall carry on any trade, business, calling, or profession thereinafter mentioned without having first obtained a license therefor, and the ordinance, after having enumerated many other trades and callings, and fixed the license fee for carrying them on, declares, in section 10, that keepers of ferries shall pay $100 license fee for each boat plying between the city and the opposite bank of the river. The power of the state of Illinois to authorize any city within her limits to impose a license tax on trades or callings generally, especially those which are quasi public, cannot be disputed. Draymen may be compelled to pay a license tax on every dray owned by them, hackmen on every hack, tavern-keepers on their taverns in proportion to the number of the rooms which they keep for the accommodation of guests. We do not think that the constitution of the United States, by the section which prohibits a state from laying a duty of tonnage, protects the keeper of a ferry from a similar tax upon the boats which he employs. Whether a license fee is exacted under the power to regulate or the power to tax is a matter of indifference if the power to do either exists. The license fee exacted is, in effect, laid upon the business of keeping a ferry, for it is not laid upon all boats owned by the ferry-keeper, but only on those plying between the two banks of the river, and is graduated by the number of boats used by him. The exaction of this license fee is identical in kind with the imposition upon a proprietor of hacks and express wagons of a specified sum for every vehicle owned by him and used in carrying passengers or baggage and merchandise from East St. Louis to the city of St. Louis, by way of the bridge connecting those cities. In the second place, the amount of the license fee is not graduated by the tonnage of the ferry-boats. It is the same whether the boats are of large or small carrying capacity. This, although not a conclusive circumstance, (Steam-ship Co. v. Port Wardens, 6 Wall. 34,) is one of the tests applied to determine whether a tax is a tax on tonnage or not, (The State Tonnage Tax Cases, 12 Wall. 212; Peete v. Morgan, 19 Wall. 581; Cannon v. New Orleans, 20 Wall. 577.) If the same license fee had been exacted of the keeper of a ferry across a navigable stream entirely within the state of Illinois,—Chicago river, for instance,—it would scarcely be contended that it fell within the constitutional prohibition. The fact that in this case the ferry crosses a river which divides two states cannot change the nature of the exaction. As we have already said, the burden imposed by the ordinance is not measured by the tonnage of the ferry-boats; it is not measured by the number of times they cross the Mississippi river or land at the city of East St. Louis. We are of opinion, therefore, that it is not a duty of tonnage, nor is it in its essence a contribution claimed for the privilege of using a navigable river of the United States, or of arriving or departing from one of its ports, and is therefore not prohibited by the constitution of the United States. Counsel for plaintiff in error contend that if the power of the city of East St. Louis to exact a license fee of $100 from every ferry-boat is conceded, the city could double or treble the fee at will. It is sufficient to say, in reply to this, that it does not follow from the fact that a power is liable to abuse, that it does not exist. If the power is abused, the remedy is with the legislature. Lastly, it is contended by the plaintiff in error that the fact that the boats of the ferry company have been enrolled, inspected, and licensed under the laws of the United States, is a protection against the exaction of any license fee by the state or by its authority. In the case of Gibbons v. Ogden, ubi supra, it was said by the court that inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state, and those which respect turnpike roads, ferries, etc., are parts of the immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government. In the subsequent case of Conway v. Taylor, ubi supra, this court, relying as authority on the declaration just cited, held that the fact that Conway had caused his ferry-boat to be enrolled and licensed, under the laws of the United States, at the custom-house in Cincinnati, to carry on the coasting trade, did not authorize him to carry on the business of a ferry between Cincinnati and Newport, Kentucky, in disregard of the rights of Taylor, who had an exclusive license from the authorities of the state of Kentucky to ferry from the Kentucky to the Ohio side of the river. The power of congress to require vessels to be enrolled and licensed is derived from the provision of the constitution which authorizes it 'to regulate commerce with foreign nations and among the several states.' We have already seen that this court, in Fanning v. Gregoire, ubi supra, has held that this right of congress 'does not interfere with the police powers of a state in granting ferry licenses.' These authorities show that the enrollment and licensing of a vessel under the laws of the United States does not of itself exclude the right of a state to exact a license from her own citizens on account of their ownership and use of such property having its situs within the state. Counsel have argued other assignments, based on the construction given by the supreme court of Illinois to the constitution and laws of the state. As, in our opinion, all the federal questions presented by the record were rightly decided by that court, it is not our province to consider these assignments. Murdock v. City of Memphis, 20 Wall. 590. We find no error in the record. The judgment of the supreme court of Illinois must, therefore, be affirmed.
109.US.381	1. A railway company, in consideration of the undertakings of S. in a written agreement, agreed therein to send all live stock coming over its road to East St. Louis, to the stock yard of S. at that place, except such as should be specially ordered otherwise by shippers or owners, and to pay him therefor an agreed rate for loading and an agreed rate for unloading: Held, that this agreement applied to all live stock shipped in the ordinary course of the company's business over its road, the direction of which was not otherwise specially ordered by shippers, and which it was possible for the company to have loaded at the stock yard of S. ; and, that on a breach on the part of the company being proved, without fault on the part of S., he could recover from the company damages in consequence of stock being sent by the company to another stock yard at that terminus. 2. The action of the court below in denying a motion for a new trial is not subject to review.	This action was brought by Struble, the defendant in error, to recover damages for an alleged breach of a written contract entered into between him and the Terre Haute & Indianapolis Railroad Company. A verdict and judgment were rendered in favor of plaintiff for the sum of $10,440. The defendant moved for a new trial and in arrest of judgment and both motions having been denied, the case has been brought here for review. By the contract in question, Struble obligated himself to build and keep in good order, on his leased grounds in East St. Louis, Illinois, all necessary stock-yards and feeding-pens suitable for the reception, feeding, handling, loading, and unloading of live-stock whic might be shipped or transported over the Terre Haute & Indianapolis Railroad to and from East St. Louis; to receive and unload all live-stock over that road; to collect all freight and charges on same and pay over to the company or its authorized agents all moneys so collected; to order from the proper agent of the company all cars necessary for the transportation of live-stock from East St. Louis; to load in a proper manner all live-stock for transportation from that place by that company; to bed such cars at a cost to shippers of not more than one dollar per car, to be collected by him from shippers; and to attend to all other necessary matters pertaining to the safe and prompt loading of all such live-stock for transportation over that road. The company, in consideration of the performance by Struble of the stipulations of the contract, agreed to build all necessary loading schutes for the use of the company connected with said yards; to send all live-stock coming to East St. Louis over its road to Struble's yards, except such as may be specially ordered otherwise by shippers or owners; to pay him 50 cents per load for all stock received by him over the road and unloaded in his yards, and two dollars for each and every car of live-stock loaded by him to be transported by the company from East St. Louis; and to give him the loading of all live-stock which may be transported over its road from that city. Struble's yards were completed and opened for business in December, 1870. From that date until some time in October, 1873, all live-stock coming to East St. Louis over defendant's line was unloaded at those yards, and live-stock shipped over that road from that city was loaded by Struble. Early, however, in the fall of 1873 the National Stock-yards were completed and opened for business. They were just outside of the corporate limits of East St. Louis, and near defendant's road. The plaintiff claimed that up to October, 1873, he performed all the conditions of the contract, and was ready, willing, and able to comply with it in all respects until it should, by its own terms, be terminated, but that he was prevented by defendant after that date from fully executing it. All this the defendant denied. The record contains numerous assignments of error, but we shall notice only such as are relied on in argument. They seem to embrace every essential question in the case. 1. It is claimed that the court below erred in admitting evidence offered by the plaintiff. The specification under this head refers to evidence as to the number of cars loaded with live-stock and taken by the defendant from the National Stock-yards between August 1, 1874, and April 1, 1880. The contention of plaintiff was that, within the meaning of the contract, he was entitled to load those cars, and recover therefor from the defendant the price fixed in the contract for such services; this upon the alleged ground that that stock had not been specially ordered by shippers or owners to the National Stock-yards, and could have been directed by the defendant to Struble's yards had it made any or proper effort to do so. In this view the evidence objected to was competent, as furnishing a basis to estimate the damages which plaintiff sustained by reason of the breach of the contract, if such breach was established by the evidence. 2. The court, among other things, said to the jury that in determining the quantity of stock that would probably have been shipped from the plaintiff's yards, they should include only such as the jury believed would have been possible for the defendant to direct to those yards. In the same connection the court said: 'The jury, in considering the meaning of the words 'all live-stock which may be transported over the said railroad from East St. Louis,' found in the last clause of the contract sued on, must determine from all the evidence before them what stock is included. The words evidently apply to such stock as in the ordinary course of the defendant's business should be shipped from that point over their line of railroad. It applies to all such stock whether loaded at plaintiff's yards or some other yards used for loading stock so shipped. As already suggested, it should be applied only to stock which it was possible for defendant to have loaded by plaintiff. It does not apply to stock, the owner or shipper of which directed the loading to be done by some person other than the plaintiff, and over the loading of which defendant had no control.' We are of opinion that there was no error in these instructions. The contract contemplated, upon the part of Struble, all the preparations necessary in and about his yards to meet the necessities of the company's business in the transportation of live-stock; and upon the part of the company that it would do all it could, in the absence of special orders from shippers, to bring live-stock to plaintiff's yards to be by him loaded in cars for transportation over defendant's road. Such was, in substance, the direction given to the jury. The court could not, under any reasonable interpretation of the contract, have said less than it did. 3. It is assigned for error that the court overruled defendant's motion for a new trial. A large part of the printed argument on behalf of defendant is devoted to a discussion of the grounds assigned in support of the motion for a new trial. But the action of the court below in refusing a new trial is not subject to review here. This has long been settled by the decisions of this court. Railroad Co. v. Fraloff, 100 U. S. 24; Wabash Ry. Co. v. McDaniels. 107 U. S. 456; [S. C. 2 SUP. CT. REP. 932.] The judgment must be affirmed. It is so ordered.
106.US.679	1. When a party offers in evidence an instrument concerning real estate which has been acknowledged or proved so as to be admitted to record, and read in evidence, the burden of proof is on the party denying its execution. The fact that a person whose name is signed as a subscribing witness is alive and is not called to testify, leaves a strong inference that its execution cannot be disproved. 2 A woman married a man by whom she became the mother of two children. She subsequently discovered that lie had a wife living from whom he had not been divorced. He then made to her an assignment of a mortgage. Held, that the assignment was a meritorious act and not impeachable for immorality of consideration. 3. The difference between a judgment and writ of partition at common law, and a partition by decree in chancery as it affects the title, is, that the former operates by way of delivery of possession and estoppel, while in the latter the transfer of title can be effected only by the execution of conveyances between the parties, which may be decreed by the court and compelled by attachment. 4. Some of the States confer upon their Chancery Courts authority to make such a conveyance by a master commissioner, or they provide that the decree itself shall operate as such conveyance and vest the title in the parties to whom the premises have been severally allotted; but where, in a suit in equity for partition, no such authority or provision exists, the proceeding, while it may be effectual as a division and an allotment of the property, does not pass the title thereto. 5. Where a decree erroneously declared the nature of the estate of each cotenant, and three days thereafter deeds inter partes were made which do not follow the decree, and where, twelve years afterwards, a bill in chancery was brought to perfect the partition by compelling conveyances in accordance with tme decree, the court may inquire into the equities of the parties arising out of the surrounding circumstances, and refuse to order conveyances in accord with the title as found by the former decree, when it would be inequitable to make such order. 6. If such former decree was made by consent of the party against whom the error was committed, and who received no valuable consideration, and if no one is interested but volunteers, or those who purchased with full notice of the facts, no order for conveyances will be made, but the parties will be left to rely for their title on those which were interchangeably made to each other in accordance with the respective allotments. 7. No person can be an innocent purchaser for value under the first decree who was attorney for the plaintiff, and who purchased from him while the suit to enforce it was pending. Northern District of Illinois. The case is stated in the opinion of the court.	This is an appeal from a decree of the circuit court for the northern district of Illinois. The issues raised by the pleadings are so well stated in the opinion of the district judge, sitting in the circuit court on rendering the decree, that we cannot do better than to state them in his language: 'By the original bill the complainant Elizabeth Flaglor charged that she was the sole surviving child of Charles D. Flaglor, deceased; that one Augustus Garrett died in the city of Chicago some time in the year 1848, seized of lot 25, in block 9, in the Fort Dearborn addition to Chicago, together with a large amount of other real estate, leaving Eliza Garrett his widow, and no children nor descendants of a child or children, and leaving a will, which was duly probated in Cook county, whereof said widow, Eliza Garrett, James Crow, and Thomas G. Crow were duly appointed executors, in which will said Garrett duly disposed of and devised his estate, and among other devisees in said will was the said Charles D. Flaglor; that in the year 1851 a bill for partition was filed in the circuit court of Cook county by said Eliza Garrett, James Crow, and Thomas G. Crow against Letitia Flaglor, Frederick T. Flaglor, and Charles D. Flaglor, and Lucy Louisa Flaglor and Elizabeth Flaglor, children of said Charles D., all of whom, it was alleged, were interested in said will; that upon the answers of the defendants to said bill, proofs taken, and the report of commissions, a decree was entered that partition be made of the real estate of which said Augustus Garrett died seized, among the persons to whom the same was devised by said will, and said lot 25, in block 9, was allotted and set apart to said Letitia Flaglor during her life, remainder over to said Charles D. Flaglor for his life, remainder in fee to his children him surviving, and on failure of children him surviving the fee to* said James Crow and Thomas G. Crow; that the parties entered into possession of the several parcels of real estate as set apart to them, and executed and delivered to each other interchangeably deeds of conveyance, so as to invest each of the parties to said bill with the title in severalty to the portions of said estate so set apart and allotted to them, and also a certain written contract in regard to the interests of the children of said Charles D. in the property set off to said Letitia and Charles D. 'The bill then alleged the death of said Letitia and Charles D. Flaglor, and that complainant Elizabeth was the sole surviving child of said Charles D., and entitled as such to an estate in fee to the lands so set off and allotted by said decree to said Letitia and Charles D., and prayed that said James and Thomas G. Crow, as surviving executors of the will of said Garrett, be required to execute proper deeds of conveyance of the fee to said lot 25 to said complainant Elizabeth, and that said Jessell and the other tenants in possession account for and pay over to complainant the rents, issues, and profits of said lot by them received after the death of said Charles. 'The bill also charged that said Charles D. Flaglor, on or about the nineteenth day of August, 1857, made and executed to Frederick T. Flaglor, his father, a certain mortgage deed of said lot 25, to secure the payment of the sum of $20,000, on the first day of November, 1867, together with interest thereon at the rate of 6 per cent. per annum, payable annually, and that said defendant Catharine Reid was the holder of said mortgage. 'Soon after filing the original bill, the said Elizabeth Flaglor, complainant, died, leaving a will, whereby she devised all her estate to her mother, Lucy C. Flaglor, and by order of court said Lucy C., who has since intermarried with one Gay, was made complainant, and the suit has since proceeded in her name. James and Thomas G. Crow were served with process, but made no defense. Jessell appeared and answered. Catharine Reid, being a non-resident, was brought into court by publication, under the statute of Illinois, and such steps were taken that the case on the original bill was brought to hearing before the superior court of Cook county, at the August term, 1872, and a decree made directing said James and Thomas G. Crow, as executors, to convey to complainant the title in them, as surviving executors and trustees of Augustus Garrett, and that Jessell, who was a tenant of the premises under an unexpired lease from said Charles D. Flaglor, surrender possession to complainant, and that the defendant Catharine Reid release the said mortgage made by said Charles D. to Frederick T. Flaglor, and that said mortgage be held void as against the estate of said complainant in said premises. In October, 1873, said Catharine Reid, by the name of Catharine Parpart, (she having intermarried with Lewis Parpart,) appeared in said cause, and on her motion said decree was opened, and she was let in to defend in said cause, whereupon she filed her answer. 'And afterwards, on the first day of February, 1875, she filed her cross-bill, alleging that said Charles D. Flaglor made and delivered said mortgage in fee to his father, Frederick T. Flaglor, and that said Frederick T., on the first day of August, 1863, duly assigned said mortgage and the indebtedness thereby secured to her, the said Catharine, and that the same was then held and owned by her, and that the whole of the principal sum of $20,000, together with interest from the second day of June, 1862, remained unpaid. To this cross-bill Arthur W. Windett, the Connecticut Mutual Life Insurance Company, and others were made defendants, and a foreclosure of said mortgage was prayed. To this cross bill answers were filed by Mr. Windett and the Connecticut Mutual Life Insurance Company, alleging, in substance, that, by the will of Augustus Garrett, said Charles D. Flaglor was only devised a life estate after the death of his mother, Letitia Flaglor, in the lands devised to him by said will, and that it was agreed between said Eliza Garrett, widow, and James Crow, Thomas G. Crow, and said Letitia Flaglor, Frederick T. Flaglor, her husband, and said Charles D., that a partition should be made among them of the property devised by said will, and that by such partition only a remainder for life, after the death of said Letitia, should be vested in said Charles D., and that on his death the fee of the property so allotted to said Letitia and Charles should go to the children of said Charles D.; that, in pursuance of said agreement, the bill for partition was filed in the Cook county circuit court, and that said Charles by his answer appeared and consented to a decree, and that the decree in said partition cause was made in pursuance of such consent, and that said Charles was bound thereby and precluded from asserting or claiming any other than a life estate in said lands, and that said Frederick T. Flaglor and said Catharine Reid were bound by such decree; that said mortgage was given by said Charles to said Frederick without consideration; and that said Catharine was not a bona fide assignee for good or valuable consideration, and that said mortgage only conveyed the life estate of said Charles D. in the mortgaged premises. 'Before the answer of the insurance company was filed, the cause was, on petition of said company, removed to this court, and on the fifth of November, 1877, the said Catharine, by leave of this court, filed her amended cross-bill, alleging that all the title and interest of Mr. Windett and the insurance company and the other defendants were acquired after and were subject and subordinate to the said mortgage held by her; and further alleged that said Charles was, by the will of said Garrett, given an estate in fee after the death of his mother, Letitia; that no agreement was ever made by Charles to accept an estate for life, and that the fee should go to his children; that said Charles never consented to said decree in said partition case awarding him only a life estate in the property set off to him; that the deeds made interchangeably between the devisees of Garrett and the contract between said parties made at the same time, were not made in pursuance of or for the purpose of satisfying said decree; that said Charles had never ratified said decree nor accepted a life estate in lieu of a fee in the lands set off to him, and that said decree was fraudulent and void as against said Charles. 'The answers of Mr. Windett and the insurance company to the amended cross-bill denied all frauds or mistake in the decree in the partition suit, and insisted that Charles and the cross-complainant were bound thereby, and also insisted that said decree was in accordance with and in furtherance of the interest of the will of said Garrett, so far as it related to the estate of said Charles in the lands allotted to him.' After a full hearing on these issues upon the pleadings, documents, and other testimony, the circuit court rendered a decree in favor of Catharine Parpart. By this decree the validity of the mortgage set out in the cross-bill and its assignment to her were established, and a decree rendered in her favor for the amount of the bond, with interest, declaring it to be a lien on the property in controversy paramount to that of all other parties to the litigation, and that unless it was paid the property would be sold for the purpose of raising the money to satisfy the mortgage debt. From this decree Arthur W. Windett, Lucy Flaglor Gay, and the Connecticut Mutual Life Insurance Company took an appeal, which brings it before us for review. The case, as it presents itself to us, concerns the interest of no other parties but these, and is limited to the proceeding growing out of the cross-bill. Two questions are raised by these issues, namely, the validity of the mortgage made by Charles D. Flaglor to Frederick T. Flaglor, his father, and of the assignment of that mortgage to Mrs. Parpart, then Catharine Reid; and, if this be decided in her favor, the further question whether, at the time that Charles Flaglor made the mortgage, he held a fee-simple to the property mortgaged or only a life estate. As the least difficult of these questions, and the one which in the natural order of discussion should be first disposed of, we will consider the validity of the mortgage and its assignment. There is but little question raised that as between Charles D. Flaglor, mortgagor, and his father, Frederick Flaglor, the transaction was an unexceptionable one. At that time, whether the estate was a feesimple or a life estate, certain transactions took place between them by which Charles became indebted to his father in the sum of $20,000. This sum the father seemed disposed to permit to remain in the hands of his son on the security of a mortgage on this property. He accordingly, in the year 1857, took from charles his bond for that sum, payable 10 years after date, with annual interest at the rate of 6 per cent., secured by this mortgage. The interest was promptly paid, notwithstanding the death of Charles in 1858, up to the death of his father in 1865. There is no reason, therefore, to doubt the validity of the mortgage as between these two. As regards the assignment of the bond and mortgage by Frederick Flaglor to the present appellee, it is assailed on several grounds, which resolve themselves into a denial of the execution of the assignment and the immorality of the consideration on which it was made. The assignment itself is on a separate piece of paper from the mortgage and the bond, and the signature is made by the cross-mark of Flaglor instead of being in his own handwriting. As Flaglor was a man of some education, and it is shown that about that time he was in the habit of writing letters and signing his own name to them, that circumstance is deemed suspicious. The relations at that time existing between him and Catharine Reid, which will be hereafter considered, are supposed to increase the force of these suspicions; also the fact that the bond and mortgage were permitted to remain in his possession. In answer to this, it is to be considered that Flaglor was a very old man, easily shaken by illness, and it was probably during some such attack, when he might not have been able to write, that he determined to do the act of justice which dictated this assignment. Original specimens of his signature, written within a short time of this transaction and produced to this court, show a shaky and difficult handwriting, and lead to the conclusion that if he was ill it would be extremely natural to have somebody write his name, which he authenticated by making a cross under It. Its execution is attested as sealed and delivered in his presence by W. G. McDonald as a witness, and the original paper produced before us shows that the name of Flaglor is in the same handwriting as that in the body of the instrument, which is apparently that of the witness. There is another consideration, however, of very great weight in favor of the validity of the assignment. Its execution was proved shortly after the date it bears, before a justice of the peace, in accordance with the laws of the state of New York, where Flaglor then resided, and the certificate of this fact, with that of the clerk of the proper court, were such that by the laws of Illinois it was admitted to record in the county of Cook of that state, and is by that law prima facie evidence of its execution by Flaglor. When this assignment and certificate were produced in evidence the onus of proving that it was not the act and deed of Flaglor devolved on the appellants. The witness W. J. McDonald was living at the time that the deposition of the appellee was taken in New York to prove the execution of the paper. McDonald was competent to prove what was done in regard to the execution of the assignment, and the fact that the appellants, with a knowledge of the case made by the certificate of acknowledgment and the positive testimony of Catharine Reid, did not call the man whose name was affixed to the paper as a witness to its execution, leaves but little doubt that it could not be thus successfully impeached. Reverting to the question of the consideration moving Flaglor to make this assignment, the facts seem to be that Catharine Reid had been for several years a domestic in the family of Frederick Flaglor while he was married to and living with a second wife, and she left his service while Frederick and his wife were yet living together at Newburg, in the state of New York. Not long after this Flaglor separated from his wife and went to live in St. Johns, New Brunswick. After being there some time he wrote to Catharine Reid that he was not in good health and needed somebody to take care of him, and requesting her to come and do so. With this request she complied, and, according to her testimony, after she got there he informed her that he had a divorce from his wife and requested her to marry him. The certificate of the clergyman of St. Johns, with both her signature and his to the fact, leave no doubt that they were married in that place on the twenty-third day of January, 1862. The fruits of this marriage were two children, both girls. They returned to Newburg a year or so after this, and there she ascertained that Flaglor had not been divorced from his wife, and of course understood at once that her children were illegitimate, and that their father was liable to a prosecution for bigamy. Flaglor, at that time, as we have said, was a very old man, and it does not appear that he and this family of his had any other means of support than the interest accruing on this mortgage. Notwithstanding the assault made upon Catharine Reid in reference to her chastity, and the probability of illicit intercourse with Flaglor previous to this marriage, and the fact much relied on that she had an undue influence over him at the time the assignment was made, we cannot doubt that in executing and delivering to her that assignment he did a meritorious act, honorable and just, as the only atonement he could make for the deception he had practiced upon her, and as placing in her hands the means of supporting the children of whom he was the father. It was not the case of a contract for future illicit intercourse of the class which the authorities hold to be against public policy, but an appropriate means of providing for the support of a woman whom he had married while he had a wife living, and of the children resulting from that marriage. We are satisfied from these considerations that the mortgage in question was a valid instrument in the hands of the appellee, Catharine Parpart, and a lien upon such interest in the property which it conveyed as Charles D. Flaglor had at the time he made it. As we have already said, the question on this branch of the subject is whether Charles D. Flaglor, at the time he made the mortgage, owned a fee-simple in the property conveyed by it or a life estate. Such interest as he had came to him primarily by the will of Augustus Garrett. The first six sections of this will mention the beneficiaries of his bounty as regards the income of his estate until the death of his wife Eliza, Mary Banks, and Letitia Flaglor, and throws very little light upon the question we are considering. The seventh section, which provides for the final disposition of his property after their decease, contains the language to be construed. It reads as follows: 'Upon the death of my wife Eliza and of Mary Banks and Letitia Flaglor, I direct that the whold of my estate shall then be equally divided between Charles D. Flaglor, son of said Letitia, if he or his legitimate children survive said Letitia, (in case he be dead, his legitimate children shall take as their father would if alive,) and the said James Crow, and the said Thomas G. Crow, each taking one-third of the whole. But if Charles D. Flaglor be at that time dead, leaving no legitimate children, the whole of my said estate shall be divided between the said James Crow and Thomas G. Crow. In all cases the heirs and devisees of the said James Crow and the said Thomas G. Crow, respectively, shall succeed to the right and portion which their ancestor and decedent would have received had he been alive, and in all cases the heirs and devisees of the said James and Thomas, respectively, and the children (legitimate) of said Charles D. Flaglor, shall only succeed to and take the share or portion of income and of estate in general which their ancestor or decedent would have had, taking per stirpes and not per capita.' The precise question here raised has been repeatedly before the courts of Illinois, as has the whold subject of Charles Flaglor's interest under this will, and we think it may be affirmed that, by several well-considered opinions of the supreme court of that state, a construction has been established which gives to Charles Flaglor, on the death of his mother, Letitia, a fee-simple estate under that will. Indeed, we do not understand counsel here to seriously controvert that such is a true construction of that instrument, and as this accords with our own, we adopt it without further discussion. On the death of Mr. Garrett his will was admitted to probate on the twenty-eighth day of February, 1849, and his widow, Eliza Garrett, having renounced the benefits of its provisions, asserted her rights to dower, whereby she became entitled to one-half of the estate. In 1851, long before her death or that of any of these devisees, the parties interested determined to have a partition by a proceeding in chancery in the superior court of Cook county. In that proceeding the property which is now in controversy was allotted to the share which went to Letitia Flaglor during her life, and after her death to Charles D. Flaglor. Under the construction of the will which we have just adopted, Charles D. Flaglor was, at the time of making the mortgage to his father, the owner of the estate in fee of the property conveyed by it, and there could be no doubt that the mortgage constituted a lien paramount to everything else in the way of a claim or title to the property. The appellants here upon the decree of partition to which we have alluded, and on certain deeds and agreements alleged to have been made by Charles D. Flaglor in connection therewith, as establishing and limiting his interest in this property to a life estate, with remainder in fee to his children on his death, and whether this contention be well founded or not, presents the main controversy in the case. That decree of partition, dividing the estate into three parts, does unquestionably declare 'that the real estate by said commissioners set off and allotted to Letitia Flaglor, Charles D. Flaglor, and his children, if he die leaving any child or children, be and the same is hereby set off and allotted, and the income thereof, to the said Letitia Flaglor during her life, and the said Charles Flaglor, if he survive said Letitia, during his life, and the child or children of said Charles D., if he die leaving any child or children, in fee.' Then first thing which suggests itself as proper to be considered in the solution of this question is to ascertain what was the law of the state of Illinois on the subject of partition at the date of that decree. Looking at the statutes of the state as we find them in the Revision of 1880, with reference to the sources from which this Revision is taken, we find that they made provision distinctly for two modes of effecting a partition, one of which, as declared by the statutes of 1845, was by a bill in chancery as heretofore, and the other by petition to the circuit court of the proper county. Very little is said on the subject of partition in chancery, as the provisions of the statutes are more specifically directed to the forms of proceeding by petition in the proper court. The proceeding in the case which we are now to consider declares itself on its face to be a proceeding in chancery, and the supreme court of the state, in the case of Wadhams v. Gay, 73 Ill. 415, in reference to this very decree, declares it to be so. We take it for granted that the statute of Illinois, in making this provision and in leaving the parties to proceed by bill in chancery, intended thereby to give to a proceeding in such case the same force and effect which a petition in chancery had in the high court of chancery of England, and that the proceeding should in the main conform to the chancery practice as thus established. As we understand that system, it did not deal with or decide questions of controverted title. Its purpose was to make division among the parties before the court of real estate in which those parties had interests or estates that were not in controversy as among themselves. It was another principle of the chancery jurisdiction in partition that a decree itself did not transfer or convey title even after the allotment of the respective shares of each of the parties to the proceeding, but the legal title remained as it was before. In this respect a decree in chancery was unlike the writ of partition at the common law, which in such cases operated on the title only by way of estoppel. In the chancery proceeding, however, this difficulty was remedied by a decree that the parties should make the necessary conveyance to each other, which, if they refused, they could be compelled to do by attachment, imprisonment, and other powers of the court over them in person. In many of the states of the Union, where the equity powers of the courts have been aided by statutes to get rid of the difficulty of compelling parties in person to execute conveyances, the court has been authorized to appoint a commissioner, who should execute the conveyances in the names of the parties. In other cases the statute has declared that such a decree itself shall operate as a conveyance of the title. At the time that the decree was rendered in the superior court of Cook county, which we are considering, we are not aware that any statute existed which gave such effect to the decree of the chancery court in partition. We find by the Revised Statutes to which we have alluded, section 29, on partition, that in the year 1861, 10 years after this decree was passed, it was enacted that in suits for the partition of real estate, whether by bill in chancery or by petition, the court may investigate the question of conflicting or controverted titles, and remove clouds on the title of any of the premises sought to be partitioned, and invest titles by their decrees in the parties to whom the premises are allotted, without the forms of conveyance of 'infants, unknown heirs, and other parties to the suit.' Other powers are also conferred on the courts in such cases. In the case of Whaley v. Dawson, 2 Schoales & L. 366, Load REDESDALE says: 'Partition at law and in equity are different things. The first operates by a judgment of a court of law, and delivering up possession in pursuance of it, which concludes all the parties to it. Partition in equity proceeds upon conveyances to be executed by the parties, and if the parties be not competent to execute the conveyances, the partition cannot be effectually had.' AND IN HIS WORK ON PLEADINGS IN CHANCERY, hE gives this clear Statement of The nature of the equity jurisdiction in partition: 'In the case of the partition of an estate, if the titles of the parties are in any degree complicated, the difficulties which have occurred in proceeding at the common law have lead to applications to courts of equity for partition, which are effected by first ascertaining the right of the several persons interested, and then issuing a commission to make the partition required, and upon the return of the commission and confirmation of that return by the court, the partition is finally completed by mutual conveyances of the allotment made to the several parties. But if the infancy of any of the parties, or other circumstances, prevent such mutual conveyances, the decree can only extend to make partition, give possession, and order enjoyment accordingly, until effectual conveyances can be made. If the defect arise from infancy, the infant must have a day to show cause against the decree after attaining 21; and if no cause be shown, or if the cause shown should not be allowed, the decree may then be extended to compel mutual conveyances. If a contingent remainder, not capable of being barred or destroyed, should have been limited to a person not in being, the conveyance must be delayed until such person shall come into being, or until the contingency shall be determined, in either of which cases a supplemental bill will be necessary to carry the decree into execution.' Mitford, Pl. (Jeremy's Ed.) 120. See Atty. Gen. v. Hamilton, 1 Madd. 214; Cartwright v. Pultney, 2 Atkyns, 380; Story, Eq. Jur. §§ 652, 653. Mr. Adams, in his admirable condensation of the equity jurisdiction, says: 'The confirmation [of the commissioner's report] does not, like the judgment on a writ of partition, operate on the actual ownership of the land, so as to divest the parties of their individual shares, and rein vest them with corresponding estates in their respective allotments, but it requires to be perfected by conveyances; and the next step, therefore, after confirmation of the return is a decree that the plaintiffs and defendants do respectively convey to each other their respective shares, and deliver up the deeds relating thereto, and that in the mean time the allotted portions shall respectively be held in severalty.' Adams, Eq. 231. This is precisely what was done in this case, except that no day in court was given to the infant children of Charles D. Flaglor, nor any decree for conveyances by them or by the other parties to the suit. That decree, therefore, did no more than to make a division and allotment of the land, and had no effect upon the actual ownership or upon the title of the parties, and did not even contain an order for possession in severalty. We must, therefore, look to the conveyances, which were made three days after this decree was entered, for any limitation of Charles D. Flaglor's interest to an estate for life in the share alloted to him and his mother, if any such there be. In reply to this view of the effect of the decree it is said that it was a consent decree, and must be held binding on Charles Flaglor by reason of that consent. It is certainly true that on the face of the proceeding, as evidenced by the bill of Eliza Garrett and the two Crows, and the answer of Charles and Letitia Flaglor, the partition was one previously agreed on by all these parties, and the bill itself gives a schedule of the different parcels of the property to be allotted by the decree to each of the three interests concerned in it. The bill also sets forth very explicitly the interest of Charles D. Flaglor as being a life estate, with remainder in fee to his children, two of whom were then alive. To this bill an answer on behalf of Frederick T. Flaglor, Letitia Flaglor, and Charles D. Flaglor was filed by their solicitors, Arnold and Ley. It might admit of some question whether this answer was intended to admit that the estate of Charles D. Flaglor was merely a life estate; but as the supreme court of Illinois, in the case of Flagler v. Crow, 40 Ill. 414, has decided that it showed consent, we assume it to be so. Waiving at present the question, on which there is much conflicting testimony, whether Charles D. Flaglor authorized these attorneys to assent for him to that construction of his interest in the property, we remark that the decree itself was incomplete and did not purport to transfer the title between parties, nor did it order or direct that such conveyance should be made in accordance with its provisions. This decree, however, was entered of record on May 26, 1851, and deeds were made inter partes on May 29th. These deeds do not refer to the decree in any manner, nor do the deeds of the other parties to Letitia and Charles Flaglor profess to describe their interests in the property, and the deed as found in the record from the Crows is to Charles Flaglor alone, and none of the deeds mention the children of Charles Flaglor. The agreement of the same date was executed by all the parties to the partition, except the children of Charles D. Flaglor, and seems to have two purposes, explanatory of the deeds of conveyance made at the same time. The first of these purposes was to declare the proportion of the debts of the estate of Augustus Garrett which should be charged upon the interest of each of the parties, and the second to make some explanation of the relations to the estate of Charles D. Flaglor and his children. The purpose of the provision on this latter subject was to have Letitia and Charles D. Flaglor and Frederick 'to save and keep harmless the shares and portions of the estate allotted to Eliza Garrett, James Crow, and Thomas G. Crow from all claim or claims which any child or children of Charles D. Flaglor may have or become entitled to under the said will or decree of any court now made or hereafter to be made.' There is also a previous reference in said instrument to the interests of the children and descendants of Charles D. Flaglor which, under said will, such children or descendants may have or at any time be entitled to. This court agrees with counsel for appellee that there is nothing in these deeds or this contemporary agreement by which Charles Flaglor agrees or binds himself or consents that his interest in the property is a life estate. The deeds of conveyance are absolutely silent on the subject and do not mention the children at all, but convey the estate to Letitia and Charles Flaglor. The explanatory agreement was evidently intended to refer this question to the true construction of the will, mentioning the rights of the children to be such as they may have under that will, and guarantying Eliza Garrett and the Crows against the effect of such construction of it as would make his interest a life estate, with remainder to his children. Assuming, then, that these conveyances inter partes were made as a part of the partition proceedings, they fail to carry into effect that part of them which declares as between Charles D. Flaglor and his children that his estate was an estate for life. It was undoubtedly in this view of the subject that, after the death of Charles Flaglor and his mother, the advisers of Elizabeth Flaglor, the only surviving child of Charles, caused the commencement of the suit in chancery, in her name, of which the present cross-bill has become a part. This bill of Elizabeth, upon its face, recites the proceedings in the original partition suit, and the contemporary conveyances and agreement, and the death of Letitia and Charles Flaglor and one child of Charles Flaglor, and considering the imperfection and insufficiency of all these proceedings to vest in the complainant, the surviving child of Charles Flaglor, the title to the real estate allotted to him and his mother in the decree, it demands of all the other parties to make such conveyance as will perfect her title, and it prays for an account of rents and profits from those who have had the property in possession. To this bill Catharine Reid, now Catharine Parpart, was made a defendant under allegations setting out the mortgage on which the present decree was rendered, and alleging it to be a cloud on the title of complainant Elizabeth, and praying that it be held to be no lien on the property. Much of the argument of counsel in this case and the testimony on which the case was heard in the court below has relation, on both sides, to the question whether Charles D. Flaglor authorized his attorneys to give the consent to limitation of his estate which is found in his answer to the original partition suit. It is not to be denied that the testimony on this subject is conflicting, as were also his declarations and actions about the time of the rendition of that decree. We do not deem it material to the case before us to decide this question, because, as neither the decree itself, nor the deeds made three days after, nor the article of agreement assented to by the parties at the same time, made any actual transfer of title different from that which resulted from the will of Augustus Garrett, and as the very purpose of Elizabeth Flaglor's suit is to effect that which was not done by that decree, the only effect which the consent of Charles Flaglor to it could have, if he ever consented, would be to have estopped him, or some one claiming under him, from contesting the force of the decree. In this view of the subject it is important to recur to what took place very soon after this decree was rendered. As soon as Charles Flaglor became aware of the construction which was put upon the decree as regards his estate in the property, he filed his bill of review, on the sixteenth day of April, 1853, in the proper court, to set aside and correct it, so far as it concerned that matter. To this bill his mother and father and two children were made defendants. A decree was rendered on the eleventh day of May, 1854, in which the former decree in that respect was reversed, and the one-sixth allotted to the Flaglors was declared to be vested in Letitia Flaglor, for and during the term of her natural life, with remainder in fee to Charles if he survived said Letitia. This decree remained in full force until after the death of both Letitia Flaglor and Charles Flaglor, when, in April, 1866, a writ of error was sued out from the supreme court of Illinois in the name of Elizabeth Flaglor, by James Link, her next friend, on which the decree on the bill of review was reversed, on the sole ground that the original decree of partition was by consent, and that such consent cured all errors. It will be observed that the decree on the bill of review remained in force for over 12 years; that during two years of that time Charles Flaglor had come into the seizin of the fee-simple estate, which both that decree and the will declared to be in him; and that it was during this period that the mortgage was made by him on which the decree we are now considering is founded. Very shortly after this reversal in the supreme court, the original bill in the present case was filed by Elizabeth Flaglor, which was prosecuted in her name until August, 1867, when she died, leaving a will by which she devised all her property to her mother, Lucy C. Flaglor, now Lucy Flaglor Gay, one of the present appellants. Early in 1872 the suit was revived in the name of Lucy Flaglor, and by amended bills in her name and by the cross-bill of Catharine Parpart, formerly Catharine Reid, the issues in regard to the controversy now before us were finally raised. No person now interested in this controversy obtained any interest whatever in this property by any purchase or by any transaction by which they parted with money or other valuable consideration until the purchase by Arthur W. Windett from Lucy Flaglor after her bill of revivor had been filed, and no one else but him and the Connecticut Mutual Life Insurance Company, another one of the appellants, have ever parted with anything of value on the faith of any of the transactions previously recited, except it be Frederick T. Flaglor, who loaned his son Charles the money on the mortgage now in question. It is impossible to see how the doctrine of the estoppel can operate in favor of any of these appellants. Such interest as Elizabeth Flaglor and Lucy Flaglor, her mother, had or acquired, was by inheritance or devise. Neither of them ever paid a dollar or parted with anything of value or did anything to their detriment by reason of any act or deed of Charles D. Flaglor, nor by reason of the original decree of partition and the deeds made under it. The one was his child, and took under his rights; the other was his wife and the mother of his child, and took under his will. Windett is, therefore, the first person who can pretend to have parted with any consideration for the title which he asserts to this property, and the insurance company holds under him. But both these parties became purchasers and acquired their interest during the pendency of this suit, and were bound to know that they purchased subject to its result. The existence of the mortgage which they now contest was recited in the original bill by Elizabeth Flaglor, and in the bills of revivor and supplemental bills filed by Lucy Flaglor, and Catharine Parpart was a party to all those bills, and her right to a paramount lien was referred to and she was made a party in regard to it in them all. It is urged in favor of the appellants that a decree pro confesso, by a default on the publication of notice, was made against Catharine Parpart, declaring her claim invalid, and that very soon after this and before that default was set aside, Windett received his deed from Lucy Flaglor. It is strenuously urged that this fact confers upon him the character of an innocent purchaser for value, and removes him from the category of a purchaser pendente lite. But this argument is not sound. The decree pro confesso, taken without any actual service on Parpart, could, within a period fixed by the laws of Illinois, be set aside upon her appearance and motion to that effect, and it was so done in this instance, and she was permitted to come in and file her answer and cross-bill. Mr. Windett was bound to know, when he purchased, the inconclusive character of the decree pro confesso on which he now relies, and that it was not in his power and that of Lucy Flaglor to defeat the right which the law gave to the absent defendant, and render it of no avail by this transfer of title. In addition to this it is impossible, in any light, to regard Mr. Windett as an innocent purchaser, since he was the attorney and counsellor in that suit of Elizabeth Flaglor during her life-time, and of Lucy Flaglor afterwards, and so remains to the present hour. It a also in evidence that he was well aware of the existence of the mortgage and its possession by Catharine, and at one time had promised it should be paid, and at another time had entered into negotiations for its purchase, all of which was prior to the date of the deed from Lucy Flaglor, under which he now asserts title. The Connecticut Mutual Life Insurance Company also acquired its interest pendente lite. That interest arises under a mortgage given by Windett to secure the loan of money, and it appears by the record that in addition to this mortgage they took other security, in consequence of the uncertain condition of the title. They have also the security of Mr. Windett's personal obligation. The only party in the litigation before us who has any just claim to the protection of an innocent purchaser without notice is the appellee, Catharine Parpart. The mortgage which she now holds was given to Frederick Flaglor by his son Charles, for which the father gave full value at the time when Charles stood seized of the estate in fee-simple to the property in controversy, according to every source of information open to any one upon inquiry. Under the will of Augustus Garrett the title of Charles was clear; under the conveyances made between parties subsequent to the decree of partition and the contemporary agreement, it was clear. The decree itself, the only thing which cast any shadow upon that title, had, upon bill of review, been set aside in that respect, and the title of Charles declared to be an estate in fee, and the remainder of the decree stood affirmed as a division of the property. Under these circumstances the right of Frederick Flaglor to feel secure in taking the mortgage on the property which he did from his son Charles, in the faith that he was secured by a good title, is much stronger than that of Mr. Windett and the insurance company, purchasing during the existence of the litigation which pointed out clearly the defect in their title. Without deciding whether Charles Flaglor ever gave his consent to the original decree, we remark, in the first place, as we have said before, that that decree did not propriae vigore transfer title from or to any one. In that suit, as between Charles D. Flaglor and his children. there were no adversary proceedings, and such decree as was had being dependent upon consent, did not operate as a judicial decision by the court of the rights of Charles and his children. There was, therefore, neither a judgment of the court nor any valuable consideration passing from the children to Charles to bind him to such consent, beyond that of an ordinary, gratuitous promise, which may be retracted before it is performed. The deeds and the agreement made three days after the decree show that if at any time Charles Flaglor had given his temporary consent to the decree, he had determined so far to retract as to keep the matter in his own power, and the bill of review and the decree which he obtained upon that review, and all his subsequent conduct in regard to the property, left no doubt in the mind of any one that he had determined to assert his full right of ownership in fee-simple under the will. It is in the face of all these circumstances that, many years after her father's death and many years after the execution of the mortgage in this suit, proceedings were commenced in the name of Elizabeth Flaglor, then a child, to secure the benefit which her advisers supposed the original decree of partition conferred on her. Under all the circumstances of this case, the diligence with which Charles D. Flaglor repudiated the supposed consent and had it set aside by a regular bill of review, the long period of 12 or 15 years in which the matter was permitted to lie in that condition, the fact that the daughter and her mother are all volunteers, and that Windett is a purchaser with notice of the litigation and taking part in it as an attorney in the case, and the insurance company holding their interest also with full notice of the facts, we think it would be inequitable to make a decree now to do what was left undone in a former decree, and which seems to have been so left by the intention of the parties to it. We cannot better express ourselves than in the following language from the opinion of the court in the case before referred to: 'We do not regard that it militates with the doctrine of the conclusive effect of what is res judicata, that where there is an incomplete decree, and it is ineffective for want of the provision of any means for its execution, and an application is made to a court of equity to supply the imperfection, so as to render the decree effective, then it is admissible to look at the real nature and character of the decree as it may appear in the light of surrounding circumstances, for the purpose of determining whether there is such an equitable ground for action as will move a court of equity to interpose. Equity will penetrate beyond the covering of form and look at the substance of a transaction, and treat it as it really and in essence is, however it may seem. In outward semblance this partition decree is a decision of court upon the relative rights of Charles D. Flaglor and his children, under the will of Garrett. In essential character it is but the judicially recorded supposed agreement of Flaglor. And upon an appeal to equity by original bill to lend its assistance for carrying it into execution, because of an omission in the decree in providing any means of its execution, it would seem reasonable that the same rule of the court's action should obtain as in case of any solemn agreement under seal; and where there are manifest the elements of injustice, mistake, surprise, misapprehension, and want of consideration, to remain passive.' Wadhams v. Gay, 73 Ill. 414. The decree of the circuit court must be affirmed, and it is so ordered.
108.US.176	A manufacturer of cigars, in his statement furnished in May, 1878, under § 8387 of the Revised Statutes, according to Form 36, set forth "the room adjoining the store in the rear, on the first floor" of certain premises, as the place where his manufacture was to be carried on. Circular No. 181, issued in March, 1878, by the commissioner of internal revenue, required that a cigar factory should be at least an entire room, "separated by walls and partitions from all other parts of the building," and that the factory designated in Form 36V should not any part of it be used, "even though marked off or separated from the remainder by a railing, counter, bench, screen or curtain, as a store where the .manufacturer can sell his cigars otherwise than in legal boxes, properly branded, labelled, and stamped." This circular went into effect May 1st, 1878. The manufacturer was engaged at the same time and place in doing business as a dealer in tobacco, having paid the special tax as such, and also the special tax as a manufacturer of cigars. He did not comply with the said circular, and had no division between the factory in the rear part of the room and the front part of the room, where he sold articles as a dealer in tobacco, except a wooden counter extending part of the way across the room, and some three feet high. He sold out of a show case in the front part, in quantities less than 25, from stamped boxes, which were duly branded, marked and stamped, cigars which he had made in the rear part, on which cigars the tax had been paid. For doing so, as a violation of § 3400, in removing cigars made by him without the proper stamps denoting the tax thereon, a quantity of cigars, the property of the manufacturer, found in the rear part of the room, in boxes not stamped, were seized as forfeited to the United States, under § 8400 : lTeld, 1. The requirements of the circular were within the power of the commissioner to prescribe, under § 3396 ; 2. The sales at retail were in violation of law; 8. The fc;rfeiture claimed was incurred. The provisions of § 3236, and subdivisions 8 and 10 of § 3244, and §5 3887, 3388, 3390 and 3392, considered and held not to authorize such sales, they constituting, under §§ 3392, 3397 and 3400, removals of cigars from the place where they were manufactured, without the proper stamp denoting the tax thereon, because the sales were sales of cigars by their manufacturer, at retail, at the place of manufacture, not in stamped boxes, the cigars being in his hands as a manufacturer and not as a retail dealer.	This is an information filed by the United States in the district court for the district of Maryland, against a quantity of domestic cigars, to obtain their condemnation as forfeited to the United States. The information alleges, as a cause of forfeiture, that the cigars were found in the possession of two persons by the name of Ludloff, doing business as Ludloff Bros., who had manufactured them, and who had unlawfully removed certain cigars, by them manufactured at their manufactory in the city of Baltimore, without the proper stamps donating the tax thereon, contrary to section 3400 of the Revised Statutes. Ludloff Bros. put in a claim and plea, denying forfeiture, and the issue was tried before a jury, who found a verdict for the United States. Thereupon a judgment of condemnation of the cigars seized was rendered, which was affirmed by the circuit court, and is now brought here for review by a writ of error taken by the claimants. The material facts of the case, as they appear by the bill of exceptions, are these: Prior to the seizure of the cigars, and before May 1, 1878, the claimants carried on the manufacture of cigars in the rear part of a small room on the first floor of the building known as No. 60 West Fayette street, in the city of Baltimore, and at the same time and place were also engaged in doing the business of dealers in tobacco; that is to say, selling imported and domestic cigars, partly manufactured by themselves, and partly purchased from others, and also selling pipes, smoking material, chewing tobaccoo, snuff, etc., they having first paid to the United States the special tax as dealers in tobacco, and also the special tax as manufacturers of cigars. In the course of said business they sold to their customers cigars so manufactured by them in the rear part of said room, in quantities less than 25, but out of stamped boxes, which boxes were duly branded, marked, and stamped, and then deposited in a show-case before said sale was made. No cigars were sold by them upon which the tax had not been paid. On the twenty-first of March, 1870, the commissioner of internal revenue had issued a circular (No. 181) in the following terms: 'The portions of the law regulating the manufacture and sale of cigars, without declaring in specific language that the two kinds of business, to-wit, manufacturing cigars and selling manufactured tobacco and cigars at retail, shall not be carried on in the same place at the same time, impose such restrictions, make such requirements, and declare such forfeitures and penalties, as renders it impracticable for these two kinds of business to be carried on together, as above stated. See sections 3387, 3392, 3397, of the Revised Statutes of the United States; also, Special 85, revised, and Form 36 1/2. Under as lenient a construction of these several sections of the law as their language and the purpose for which they were enacted, to-wit, the protection of the revenue, will admit, it is held that a cigar factory, or the place where cigars can be made for sale, must be at least an entire room, separated by walls and partitions from all other parts of the building, and that the factory or place of manufacture designated and described in form 36 1/2 cannot be used, nor can any portion thereof, even though marked off or separated from the remainder by a railing, counter, bench, screen, or curtain, be used as a store where the manufacturer can sell his cigars otherwise than in legal boxes, properly branded, labeled, and stamped. When a cigar manufacturer has a store in a room adjoining his factory, a door and windows may be allowed between the factory and store; and, if necessary for light or ventilation, the upper portion of the partition between the factory and store may be of glass or wire-cloth. Collectors and all other revenue officers are enjoined to see that these instructions are strictly enforced on and after May 1, 1878.' This order was disregarded by the claimants, because in June, 1878, the said district court had decided that the business of manufacturing and selling cigars at retail, by the same person, at the place of manufacture, as well as selling at said place manufactured tobacco, pipes, and other smoking material, was not prohibited by law. Thereupon, in August, 1878, the cigars in suit were seized as forfeited, and were found, when seized, in boxes not stamped, in the rear part of the room before described. Such rear part had been designated as the factory or place of manufacture where the claimants proposed to carry on their business in manner and form as prescribed by the commissioner of internal revenue, as follows: '(36 1/2.) 'UNITED STATES INTERNAL REVENUE. 'Cigar Manufacturers' Statement. 'To be rendered to the collector or deputy collector in duplicate, without previous demand therefor, by every manufacturer of cigars before commencing or continuing business. Act of July 20, 1868, § 82, as modified by section 1, act of December 24, 1872; section 3387, Rev. St. 'Ludloff Bros., of Baltimore, in the sixth division of the third district of the state of Maryland, at No. 60 West Fayette street, propose to manufacture cigars; and so much of the building or parts of the building, stories, apartments, room or rooms, as hereinafter described, is to be used exclusively and solely for manufacturing cigars, and is to be known as my manufactory, or place where cigars are made, to-wit, in the room adjoining the store in the rear, on the first floor of premises No. 60 West Fayette street. 'There are employed in the premises above described, or I propose to employ, five persons in making cigars; which cigars are manufactured for or to be sold and delivered to _____, residing at No. ___, in the ___, and by occupation a _____. [Signed] 'LUDLOFF BROS. 'I, William Ludloff, do swear that the above is, to the best of my knowledge and belief, a true and correct statement of the place, street, number, and the exact premises where the business of manufacturing cigars is, or is to be, carried on by Ludloff Bros., and all the other matter stated herein is true and correct. [Signed] 'WILLIAM LUDLOFF. 'Sworn before me this twenty-fifth day of May, 1878. [Signed] 'R. G. KING, Deputy Collector. 'NOTE. The blank space in this form after the words 'to wit' is to be filled with a precise and accurate description of the premises. If the manufactory comprises anything less than the entire building, then the description must specify what portion of the building,—whether the first, second, or third story of the same,—and what room or rooms therein. The same premises or room cannot be used for carrying on the business of a cigar manufacturer and a dealer in cigars. In any building, room, or apartment of any building designated in this statement as the manufactory or place of manufacture, no cigars can be sold except such as are there manufactured, and are in original and full packages.' At the time of said seizure, the wire partition having been previously removed by the claimants, there was no division or separation between the said rear part of the room, designated as the factory as aforesaid, and the front part of the room, where the business of selling cigars, etc., was carried on by the claimants, except a wooden counter extending part of the way across the room, and from three to three and half feet high, upon which said wire part of the partition had rested. The court instructed the jury that if at the time of the seizure the cigars were found in possession of the claimants, and they were carrying on the business of manufacturing cigars and selling the same by retail, such retail sales being in quantity less than 25, and not sold in stamped boxes, and that said manufacture and said retail sales were carried on in a room in which there was no separation except a wooden bar about three feet high, extending, partly across the said room, the jury should find for the United States, although they might find that the claimants made cigars only behind said wooden bar and sold at retail out of stamped boxes. The court also instructed the jury that such retail selling, under such circumstances, to persons who took the cigars away, constituted a removal by the claimants of cigars from their manufactory without the proper stamps on the boxes denoting the tax thereon. The court refused to instruct the jury that the business of manufacturing cigars and selling the same in less quantities than by the box, at the place of manufacture, is not prohibited by law, provided the manufacturer has a license as a dealer in tobacco, when he sells products other than his own manufacture. These instructions and refusal were excepted to by the claimants. The substance of the instruction of the court was that if the claimants had sold cigars manufactured by themselves in quantities less than 25, and not in boxes duly stamped, from the show-case in the part of the room in front of the bar, they had incurred the forfeiture in question, although the cigars were made by them in the rear part of the same room behind the bar, and were sold at retail out of stamped boxes. It is to be understood from the bill of exceptions, in connection with the instructions and the verdict, that the claimants, after having had the rear part of the room, namely, the part designated in their 'statement' as their manufactory, separated from the front part or store part of the same room by a wire partition, so as to substantially make two rooms, and to make the factory an entire room and a separate room, in accordance with the instructions of said circular, had, at the time of the sales at retail complained of as a ground of forfeiture, removed the wire partition, so that the factory was not then a separate room in the sense of said circular, but the manufacturing was carried on in the same room in which the show-case was and in which the sales at retail took place. This being so, we are of opinion that the instructions were correct; that the requirements of the circular were within the power of the commissioner to prescribe, and not repugnant to any statutory provisions; that the retail sales in question were in violation of law; and that the forfeiture enforced was incurred. The claimants contend that section 3236 of the Revised Statutes provides that whenever more than one of the pursuits or occupations thereinafter described are carried on in the same place by the same person at the same time, except as thereinafter provided, the tax shall be paid for each according to the rates severally prescribed; that, by subdivision 8 of section 3244, a dealer in tobacco pays a special tax of five dollars, and can sell manufactured tobacco, snuff, and cigars, and by subdivision 10 of the same section, a manufacturer of cigars pays a special tax of $10; that the claimants had paid both of these special taxes; that subdivision 8 of section 3244 provides that no manufacturer of tobacco, snuff, or cigars shall be required to pay a special tax as dealer in manufactured tobacco and cigars for selling his own products at the place of manufacture; that section 3392, forbidding the sale of cigars in any other form than in new boxes containing at least 25 cigars, provides that nothing in that section shall be construed as preventing the sale of cigars at retail by retail dealers who have paid the special tax as such, from boxes packed, stamped, and branded in the manner prescribed by law; and that, under these enactments, no cause of forfeiture existed. But we are of the opinion that there is nothing in these provisions which authorizes a manufacturer of cigars to sell at the place of manufacture, from and out of boxes, cigars there made by him, even though he has paid a special tax as a dealer in tobacco. The provision in section 3236 refers only to pursuits or occupations which can be carried on in the same place by the same person at the same time consistently with other requirements of law on the subject of the special pursuit or occupation. It has no reference to the grant of any authority to carry on two occupations at the same time and place by the same person, but concerns only the obtaining of a tax for each of two occupations when they are lawfully carried on. The provision in section 3244 has no other effect than not to require that a manufacturer of tobacco, snuff, or cigars, who sells his own products at the place of manufacture in such manner as is consistent with other provisions of law as to the manner of the sale of such products, shall pay a special tax as a dealer in manufactured tobacco and cigars. It has relation solely to the exaction of a tax and not to the conferring of authority to sell. The provision cited from section 3392 has no relation to cigars sold as those in the present case were sold, by the manufacturers, at the place of manufacture. The cigars sold were not in their hands as retail dealers, but as manufacturers, because the requirements of law as to the removal of the cigars from the manufactory had not been observed, and the cigars were still in the manufactory. We perceive nothing in sections 3387, 3388, or 3390 which affects the foregoing views. Section 3392 requires that all cigars shall be packed and sold in new boxes containing at least 25. Section 3397 forbids for removal of cigars from any manufactory or place where cigars are made, without being packed in boxes as required, or without the proper stamp thereon denoting the tax. Section 3400 provides that if a manufacturer of cigars removes or sells any cigars without the proper stamps denoting the tax thereon, he shall forfeit to the United States all cigars found in his possession or in his manufactory. Under these provisions the removal of the cigars in this case, from the place where they were manufactured, by selling them at retail, not in stamped boxes, was ground for the forfeiture of the cigars seized. The regulations prescribed by the commissioner by the circular referred to were within his authority, under section 3396, to prescribe such regulations for the inspection of cigars and the collection of the tax thereon as he may deem most effective for the prevention of frauds in the payment of such tax. Thacher's Distilled Spirits, 103 U. S. 679. The proposition asserted in the instruction asked for by the claimants, and which the court refused to give, is understood to be, that, as the claimants sold at their shop, as dealers in tobacco who had paid the special tax, articles not of their own manufacture, in addition to cigars which they made in the same room, the sale of the last-named cigars were not prohibited by law. If this proposition has any other meaning than the propositions before considered, it must be held to be entirely without support in law or in reason. Although the record shows that the claimants were, as dealers in tobacco, engaged at their shop in the business of selling cigars which they purchased, as well as cigars which they made, there is nothing in the case which raises any other questions than those above considered. The judgment of the circuit court is affirmed.
107.US.64	By a special act, B. was allowed a pension of fifty dollars per month, which was paid to him until he claimed and received, under a subsequent general act, seventy-two dollars per month. Held, that he is not entitled to take under both acts.	The relator does not claim that there is anything due him under the pension laws prior to June 4, 1872. It appears from the answer of the secretary of the interior, and there is no evidence to the contrary, that since June 4, 1872, the relator has received every cent that is due him under the general pension laws. The special act of March 3, 1879, declared that the pension of $50 thereby granted should be in lieu of the pension the relator was then receiving, and, at least, cut off all claim to arrears of pensions under that act. All, therefore, that is left of his case is his contention that he is entitled not only to the pension of $72 per month allowed him by the general act of June 16, 1880, and which has been paid him, but in addition thereto the pension of $50 per month granted him by name by the special act of March 3, 1879. It appears from the answer of the secretary of the interior that the relator was, under the advice of the department of justice, paid both pensions from March 3, 1879, to June 4, 1882. The complaint of the relator is that the payment of double pensions is not continued, and it is for the purpose of enforcing his right to his special pension of $50, in addition to the general pension of $72, that he asks that the secretary of the interior may be compelled to return the certificate issued to him under the special act. The right of the relator to double pensions, if he ever had such right, has been effectually cut off by section 5 of the act of July 25, 1882, which declares 'that no person who is now receiving or shall hereafter receive a pension under a special act shall be entitled to receive, in addition thereto, a pension under the general law, unless the special act expressly states that the pension granted thereby is in addition to the pension which said person is entitled to receive under the general law.' It was competent for congress to pass this act. No pensioner has a vested legal right to his pension. Pensions are the bounties of the government, which congress has the right to give, withhold, distribute, or recall, at its discretion. Walton v. Cotton, 19 How. 355. Therefore, the contention of the relator, that having received the pension of $72 under the general law, he is also entitled to the pension of $50 granted him by the special act, is without ground to rest on. His pension certificate, issued under the special act, can be of no service to him unless he wishes to relinquish the pension of $72 under the general law, and fall back upon the pension of $50 granted him by the special act. But he expresses no such purpose. His object is to get the certificate in order to draw double pensions, which the law says he shall not have. He voluntarily surrendered his pension under the special act, in order to receive the larger pension to which he became entitled on the passage of the general act of June 16, 1880. As he is not entitled to any pension money upon the certificate under the special act, which he voluntarily surrendered, unless he waives his right to receive the larger pension given him by the general law, which he does not do, a judgment that the certificate be returned to him would be futile. From all that appears by the record the relator has been accorded by the officers of the department of the interior and of the pension bureau all his rights. Up to September 4, 1882, he has been paid all the pension money due him under any act of congress. After that date he is entitled under existing laws to a pension of $72 per month and no more, and this the pension bureau is ready to pay him. The supreme court of the district was, therefore, right in refusing the writ of mandamus, and its judgment must be affirmed.
109.US.408	Claim 4 of reissued letters patent No. 1527, granted to John Richards, August 15th, 1863, for a "guide and support for scroll-saws," the original patent, No. 85,890, having been granted to him, May 25th, 1862, for an "improved guide and support for scroll-saws," namely, "4 An anti-friction guide which is adjustable so as to accommodate different thicknesses of sawblades, and to compensate for -wear, in combination with the upper portion of a web saw-blade, substantially as set forth," does not cover an arrangement in which a band-saw is used, passing over wheels, and running constantly in one direction, towards the table on which the stuff lies, and having a tension over the peripheries of the wheels. Claim 1 of said reissue, namely, "5. The combination of the anti-friction sawsupport and guide, or the equivalent thereof, with an adjustable guard, or its equivalent, substantially as and for the purpose set forth," is not infringed by an arrangement in which such a band-saw is used, and the guard does not hold down the stuff against the upward lifting action of the saw, because the saw is constantly passing downward. The claim of letters patent No. 78,880, granted to J. A. Fay & Co., June 16tb, 1868, for an "improvement in guides for band-saws," on the invention of John Lemman, namely, "The combination of the roller b with fixed lateral guides, c c c, one or more, arranged and operated substantially in the manner and for the purposes specified," is for the combination of an antifriction smooth faced wheel to support the back or thin edge of the saw, and to have lateral adjustment, presenting different points to wear, with the fixed guides, and is not infringed by an arrangement in which the wheel has two grooves in it, in one of which the saw runs, and in the other of which it can be made to run by lateral adjustment. Claim I of letters patent No. 120,949, granted to J. A. Fay & Co., November 14th, 1871, for an "improvement in ba:nd-sawing machines," on the invention of William IL Donne and William P. McKee, namely, "1. The frame A, A', A", in combination with the lower arbor-bearing, said frame being construct6d as herein described, with a depression, A", permitting the ready removal of the arbor, as explained," is not infringed by an arrangement in which the depression does not leave exposed a seat which is entirely open upward and the arbor-bearing cannot be removed without detaching the pulley from the arbor. Claim 2, namely, "2. The arrangement of frame A A' A" A"', and of tho horizontally and vertically adjustable arbor-bearing C, D, V, E, E', G, H, A," is not infringed by an arrangement which does not have the frame and depression of claim 1, or the elements D D', or the same or equivalent means of adjusting such arbor-bearing either horizontally or vertically. Claim 8, namely, "3. The arrangement of step or saddle k and its contained box or bearing T L,' covers, as an element of the arrangement, among other things, a spring which carries the weight of the saddle, and gives an elastic tension to the saw, and is not infringed by an arrangement in which there is a rigid saddle and no spring. Claim 4, namely, "4. In combination with the upper arbor, L', the lower arbor-bearing, E,,adjustable both vertically and horizontally, as shown and described and for the purpose set forth," in not infringed by an arrangement which does not infringe claims 2 and 3.	This suit in equity of three several letters patent. The first is reissue No. 1,527, granted to John Richards, August 25, 1863, for a 'guide and support for scroll-saws,' the original patent, No. 35,390, having been patented to him, May 27, 1862, for an 'improved guide and support for scroll-saws.' The specification of the reissue is as follows, including what is inside of brackets and what is outside of brackets, omitting what is in italics: 'To all whom it may concern: Be it known that I, John Richards, of Columbus, in the county of Franklin, and state of Ohio, have invented a new and useful [method of guiding and supporting] combined guide, guard and support for scroll-saws; and I do hereby declare that the following is a full, clear, and exact description of [one practical means of carrying out my invention] the same, reference being had to the accompanying drawings forming part of this specification, in which [Figure] Fig. 1 is a perspective view of a portion of [a] the table and [a] the saw-blade [of a 'scroll saw-mill,' with my invention applied to the same.] and my improved upper combined guide, guard and support. [Figure] Fig. 2, a longitudinal section of the same connected to the suspended stud of the building. [Figure] Fig. 3 is a horizontal section [through the guide and support.] in the line [through the guide and support.] in the line letters of reference [where used] in [different] the several figures indicate corresponding parts. [It has long been a x x, of Fig. 2. [The same] Similar which will work successfully while [different] the several figures indicate corresponding parts. [It has long been a desideratum to obtain a scroll sawmill which will work successfully while the upper end of the saw blade is left free from a sash or upper straining device; and this has never been attained until the development] The nature of my invention [which] under this patent consists [1st, in working the saw at a point above the table in a groove which as steel, polished iron, or glass, or any other known and suitable metal or substance, the upper end of the saw being disconnected from any upper suspender or sash, but supported and guided at its back edges and at its sides or broad faces, and its lower end connected to any mechanical device that will produce the desired motion in saw. It consists second in an adjustable guide and support whereby different thicknesses of scroll or web saw may be used at will. It consists, 3d, in attaching the anti-friction guide and support to an adjustable device which constitutes a guard to hold down the stuff being sawed, and also insures a support of the saw at the point near where the sawing is performed as well as above this point. My principle of operating a scroll or web saw must not be confounded of the saw at the point near where the sawing is performed as well as above this point. My principle of operating a scroll or web saw must not be confounded with the 'muley saw,' as in the 'muley saw' it is common to employ guides attached to the saw, such guides running in or upon bearings independant of the saw-plate, whereas with the web or scroll saw worked according to my discovery, the back of the blade or plate is supported upon a hardened steel or other durable anti-friction surface, and is guided laterally by sim ilar surfaces, so that the saw is supported and guided without any means of tension so that the saw is supported and guided without any means of tension being employed. Furthermore, 'muley' saws are supported at each end by cross-heads and only in the center by lateral guides; and a saw must be employed that is strong enough in its cross-section to stand the work. Now with my plan, I support the saw down saw-mills, and enables me to use small, which is a new thing in this class of saw-mills, and enables me to use small, light saw-blades. Previously to my discovery of running the upper end of the web or scroll saw in frictional contact with an upper guide it was deemed an impracticable thing, and it is now only by practical demonstration and long use that saw-mill men are convinced rapidly wear out the guide. The non-destruction or web saws will not cut through and of time, although the pressure upon of the guide in a short period of time, although the pressure upon it is immense, is due to the fact of the guide being of hardened steel or other smooth, hard material, over which the saw-plate glides with but little frictional wear.] in the guide and back supporting bars or plates in connection with the sliding guard, the same constituting a combined guide, guard and enable others skilled in the art to make upper portions of a scroll-saw blade. To enable others skilled in the art to make and use my invention, I will proceed to describe [one practical means in which I have embodied it with great sucess; but, in doing so, I do not wish to be understood as limiting myself to these mechanical devices in themselves, as the principle may be embodied in various other means and still not depart from the discovery embodied in machinery that I desire to patent.] its construction and operation with reference to the drawings. [Not using] I do not use a sash [or] nor other means of straining the saw S, [I] but fasten the lower end of the [blade] same to the upper end of a stock or slide, S', of [a] the pitman, by a set-screw, S2, or [I upper end of a stock or slide, S', of blade to a device which will properly operate the saw. The] in any other similar manner, and have its top or upper [end of the saw] portion disconnected above the table [T,] T. [I leave entirely disconnected, but in order to stead or guide and support this free end during the saw operation I attach a grooved steel guide to a] The said upper portion of the saw is supported and guided by means of the two parallel bars a a, and the angular plate b. The bars have a lateral adjustment to accommodate saws of different thicknesses, their purpose being to keep the saw in a true vertical line, and to keep it from twisting, while the office of the back plate, b b', is to support the saw against the strain of the stuff on the teeth, when the work is being shoved against it. The guides a a and back plate b b' are all made of hardened steel, to prevent friction and wear. This device a a b b' is fastened to the lower end of the sliding strip or guard piece A, [other device which will answer as a firm support to the guide, and as a guard to keep down the lumber being sawed. The device A is attached to a] which is fitted in a groove of a suspended stud [or timber] B, of the building, [and is better if made adjustable by means of a slot and clamp-bolt, such as designated by the letters e c d; but other known means for adjusting this device a back plate, b, and two side plates shown, is formed of three parts, to-wit, firmly to the former, as shown. The a, a, which latter are bolted or screwed firmly to the former, as shown. The slots s through which the bolts f f pass are large enough to allow the plates a a a slight lateral adjustment whenever it is desired to use a saw with a greater or a guide of hard anti-friction surface, would be attained if a groove was formed or a guide of hard anti-friction surface, would be attained if a groove was formed in a thick steel plate, or other hard substance, except the advantage of accommodating saws of various thicknesses. I believe I am the first to use the grooved anti-friction guide, as well as the first to have the groove variable in width, and therefore I do not confine myself to adjustable guides and supports. The office of the back part of the groove or guide is to support the saw against the strain of the timber on the teeth when the work is being shoved against it, while the office of the lateral portions of the groove or guide is to keep the saw in a true vertical line and prevent it from twisting. The office of the guard A, which extends down nearly to the top of the table, is to hold down or prevent flying up of the 'stuff' or timber being sawed, and and at the same time bring the supporting guide to the saw right down to the place where the sawing is being performed, and thus insure the most perfect operation as well as an effectual supporting and guiding of the saw.] and confined accordingly, as the thickness of stuff being sawed required, by means of a clamping screw-bolt, c, and hand-nut, d. The bolt passes loosely through an oblong slot, e, of the guardstrip, but fastens firmly in the stud B, B, as shown. This guard rests in close contact, or nearly so, with the stuff being sawed, and keeps the same firmly down upon the table, while the device a a and b b' guides and supports the saw, as above stated. It will be seen that screw-bolts, f f, confine the plate b and bars to the strip or guard A, and that the holes or slots through the bars a areelongated so as to allow the guide-bars a a chance to move nearer together or further apart, to admit different thicknesses of saw-blade. It will also be seen that the guides, by being attached to the strip, are adjusted with it up and down, the said up and down adjustment being allowed by the slot e%2D of the strip; and thus the angular part b' of the plate b aids also in holding down the stuff, it having a vertical kerf, g, cut in it, to admit the saw-blade, and the quide and supporting plates or bars are always in proper position. This [guard by its] arrangement also obviates the [heretofore] necessity of leaving the upper end of the saw-blade above the table unsupported and unguided, as it allows of the work or [timber] stuff being freely turned while the sawing is progressing, a clear open space between the guard and the table being left. [In the drawing I have shown the lower end of the guide forming an angle; this is to give a larger guard surface. This angular portion has a kerf, g, cut in it to admit the saw-plate to the back of the guide. I, however, do not limit myself to this form of guide.] The plate b might be made without the angular part b', but not answer so good good a purpose. I do not claim operating a scroll-saw without straining, nor do I claim the application of lateral guides to saws; neither do I claim an adjustable guard to prevent the stuff rising with the saw.' Reading, in the foregoing, what is outside of brackets, including what is in italic, and omitting what is inside of brackets, gives the text of the original specification. The original patent contained one claim, as follows: 'The guide bars a a, and the back plate b, in connection with the sliding guard-strip A, the same constituting a combined guide, guard and support for the top of a scroll-saw, and operating substantially as herein described.' The reissue contains five claims, '(1) Running the upper portion '(1) Running the upper portion a groove of an anti-friction guide and support, substantially as and for the purpose described. (2) Operating purpose described. (2) Operating practically an unstrained web or scroll saw, by combining with such saw-mills an upper anti-friction guide, which supports the back of the saw-blade, and faces, substantially as set forth. (3) faces, substantially as set forth. (3) The use of anti-friction guides as a substitute for straining devices, in the guide to be raised and lowered to suit the thickness of the stuff, substantially as set forth. (4) An anti-friction guide which is adjustable so as to accommodate different thicknesses of saw-blades, and to compensate for wear, in combination with the upper portion of a web-saw blade, substantially as set forth. (5) The combination of the anti-friction saw support and guide, or the equivalent thereof, with an adjustableguard, or its equivalent, substantially as and for the purpose set forth.' Infringement of only claims 4 and 5 of the reissue is alleged. It is apparent, in reading the specification of the original patent and that of the reissue, that Richards contemplated the use of his improvements only in connection with a saw-blade, the upper end of which was free from any suspender or sash, and the lower end of which was so connected with mechanism as to obtain the desired motion in the saw. Claim 4 of the reissue, claims, as an element in the combination covered by that claim, 'the upper portion of a web-saw blade.' The saw-blade shown in the drawings, and the only saw-blade which can have an upper portion capable of being free or disconnected, in the sense in which those words are used, is a reciprocating saw-blade, actuated from below, and alternately pushed and pulled. The specification of the reissue states that Richards' saw is supported and guided 'without any means of tension being employed.' The defendants use a band-saw, which is an endless saw, passing over wheels, and running constantly in one direction, towards the table on which the stuff lies, and having a tension over the peripheries of the wheels. For this reason, the defendants do not need nor do they have any guard which performs the function of the guard embraced as an element in the combination covered by claim 5 of the reissue, of holding down the stuff against the upward lifting action of the saw, because the saw is constantly passing downward. There is, therefore, no infringement of either claim 4 or claim 5. The second patent sued on is No. 78,880, granted to J. A. Fay & Co., June 16, 1868, for an 'improvement in guides for band-saws,' on the invention of John Lemman. The specification says: 'Figure 1 is a front elevation of one of my improved guides; Figure 2 is a side elevation of the same; Figure 3 is an elevation of the auti-friction roller b, removed from the guide; and Figure 4 is a partial plan, showing the Figure 3 is an elevation of the anti-friction roller b, removed from the guide; and Figure 4 is a partial plan, showing the parts. In operating endless saws, guides. Similar letters of reference in the different figures indicate corresponding high speed at which these saws guides are needed both above and and below the wood. As is well known, the high speed at which these saws are driven, and the small amount of surface presented to the guide from the edge of the saw-plate, cause fixed guides to wear away very fast, even if made of hardened steel or glass, particularly when heavy sawing is done, and the strain of the feed falls on the saw. Rolling guides, while they have partially overcome the difficulty of friction and wear on the back of the saw, cannot be constructed to give a proper lateral support to the saw, as will hereafter be alluded to. The object of the invention here illustrated is to obviate these several difficulties, and give important advantages in operating saws of this kind. Its nature consists in a combination of anti-friction rollers and fixed guides, points to wear; the fixed guides as a lateral support, and so constructed as to accomodate saws of different widths, as hereinafter explained. To enable others skilled in the art to make and use my invention, I will proceed to describe its mode of construction and the manner of operating the same, with the aid of the drawings. a is a frame or support for the guides. It is cored out to receive the wheel b, with room for lateral adjustment. On the top is a cylindrical extension, h, intended to be connected to a bar, on which the whole structure is adjusted up and down, to suit the thickness of the wood being sawed. b is an anti-friction wheel of hardened steel or other suitable material, mounted on an axis, f, as shown in Fig. 3, and by red lines in Fig. 1. This axis has conical bearings formed in the piece g, which allows of compensation for wear, and by loosening the screws § s, the wheel b and bearings g g can be adjusted laterally, so as to bring different points of the periphery of wheel b in contact with the saw. c 1 from turning and in a true line. These guides are so arranged that two or more of them can be used and the others removed or adjusted to receive a narrow saw, as shown in Fig.4. The holes through which the screws d d pass are slotted, as shown by red lines, Fig. 1. E is a section of a band-saw, sufficiently wide to allow of all the plates, c c c, being used. The wheel b is so arranged as to barely pass through the plate m, and come in contact with the saw E. Oil-holes are formed at i i, Fig. 1, communicating with the bearings of axis f, as shown in Fig. 1. The operation will be readily understood. Having thus explained the nature and objects of my invention, I do not claim the use of an anti-friction roller applied to the back of the saw; neither do I claim the fixed lateral guides.' 'The combination of the roller b with fixed lateral guides, c c c, one or more, arranged and operating substantially in the manner and for the purposes This patent stands on very narrow ground. Anti-friction rollers narrow ground. Anti-friction rollers applied to the back of the saw are disclaimed and were old. Fixed lateral guides for he faces of the saw are disclaimed and were old. The text of the specification limits the invention to a combination of an anti-friction wheel to support the back or thin edge of the saw, presenting different points to wear, presenting different points to wear, with fixed guides to support laterally the faces of the saw, the fixed guides being so constructed as to widths. The anti-friction wheel, widths. The anti-friction wheel, by means of its conical bearings, can be advanced nearer, as it wears, to the back edge of the saw; and the wheel and its bearings are capable as to bring different points of the as to bring different points of the periphery of the wheel in contract with the back edge of the saw. to is manifestly that described to is manifestly that described in the Richards patent. The only point of invention dwelt on in the Lemman specification is the which, though it is to be an antifriction which, though it is to be an antifriction made of hardened steel or other suitable material, will still wear material, will still wear away on the surface presented to the edge of the saw; and the lateral adjustment enables different points of the periphery of the wheel to be brought into cintact with the saw, so as to present different points entire width of a periphery of a wheel may be utilized. The defendants have used a wheel which has two grooves in it, in one of which the saw runs and in either of which it can run. The wheel can be adjusted laterally, so as to bring the one or the other of the two grooves into use. But there is no adjustment to bring different points of the periphery of a smooth-faced wheel into use. In view of the state of the art and of the limitations of the specification there has been no infringement. Merely adjusting a wheel laterally, so as to give it different positions at different times, was a thing well known to mechanics; and running the the back edge of a saw in a groove in a roller existed in the prior Closterman device. The third patent sued on is No. 120,949, granted to J. A. Fay & Co., November 14, 1871, for an 'improvement in band-sawing machines,' on the invention of William H. Doane and William P. McKee. Claims 1, 2, 3, and 4 of this patent are alleged to have been infringed, there being seven claims. The specification, so far as it is material to be cited, says: 'The first part of our invention relates to an improved form of supporting frame and of he upper and lower with their inclosed arbors, are made with their inclosed arbors, are made easily accessible and removable for inspection and repair, and relatively adjustable, so as to be brought into exact line, and otherwise so regulated as to insure hereinafter explained. * * * Figure 1 is a perspective view of a machine Figure 1 is a perspective view of a machine embodying our improvements. Figure 2 is a vertical section of the machine Figure 5 is a plan of the lower arbor-bearing. 5 is a plan of the lower arbor-bearing. The frame which supports the operative parts of our machine consists of a single casting of the peculiar form here represented; that is to say, a base, A, the main column or standard A1, (supporting the upper arbor-bearing and saw, guide,) a shorter column or pedestal A%2D, a shorter column or pedestal A§§, which latter supports and is surmounted by the bench or table B, on which the between the columns A1 and A%2D leaves exposed a seat, which extends leaves exposed a seat, which extends below the center of the lower arbor and is entirely open upward, which seat forms an accessible and convenient place for the attachment, inspection, and regulation, and, when necessary, the ready detachment, of the lower arborbearing, which bearing is constructed as follows: Bolted or otherwise securely pillow-block, C, having vertical flanges c c 1 bolts D D1, which, entering orifices in the box or bearing E E1 of the lower in the box or bearing E E1 of the lower fastening for the said bearing. A set-screw, G, tapped in the bottom of G, tapped in the bottom of the the box E E1, enables its adjustment and retention to horizontality, or such and retention to horizontality, or such desired. Other set-screws, H H1, passing desired. Other set-screws, H H1, passing c c 1, near their rear end, enable the adjustment c c retention of said box to a common vertical plane with the upper arbor. The end of the lower arbor most remote from the pulley I carries the driving-pulley J. It will be seen that, on the loosening of four screws, the entire lower arbor and journal-box may from the machine, without detaching from the machine, without detaching part of the standard A1 is curved part of the standard A1 is curved forward, as represented, and has a slot, a, to hold and guide to vertical path a step or saddle, K, to which is pivoted a the upper arbor-bearing L L1. The saddle K the upper arbor-bearing LL1. The saddle K has a horizontal extension, k, which a nut, t, that rests on a spring or cushion, O, in the bottom of the slot a. The screw M being turned to the right or left elevates or depresses the upper arbor-bearing, and, in so doing, causes the proper tension to be imparted to the saw. Another screw, N, that is tapped in the lug l, bears against the face of the saddle K, and enables the regulation, or angular adjustment, in a vertical plane, of the upper arbor-bearing. The above-described capacity for angular adjustment of the band-pulley arbors in their common plane enables the operator to confine the path of the saw nicely nicely to the middle of the pulley, or to shift it more or less towards the front front or back portions of their peripherise, so as to cause all parts to be equally worn. The spring O, while co-acting with the screw M to preserve the proper tension of the saw, also imparts an elastic and yielding quality to the tension. * * While preferring the described relative positions of the pivot-screws D D1, and laterally adjusting screws H H1, we do not confine ourselves thereto, as the pivot screws may be situated near the rear and the adjusting screws near the front portion of the box.' '(1) The frame A A1 A%2D, in combination combination with the lower arbor-bearing, said frame being constructed as herein described with a depression, A', permitting the ready removal of he arbor, as as explained. (2) The arrangement of frame A A1 A%2D A", and of the horizontally and vertically adjustable arborbearing C D D1 E E1 G H A. (3) The arrangement of step or saddle K and its contained box or bearing L L1. (4) in combination with the upper arbor L1 the lower arbor-bearing E, adjustable both vertically and horizontally, as shown and descrobed and for the purpose set forth. (5) In combination with the lower arbor, the upper arbor-bearing, adjustable in a vertical plane by means of the screw M, nut T, and spring O, as and for the purpose designated. (6) The combination of the slotted standard A1 a, saddle K k, arborbearing L L1 l, nut T, screws M N, and spring or cushion O, as shown and described, for the purpose set forth.' As to claim 1, it is for a combination of the three-sidded frame A A' A%2D, with the lower arbor-bearing, when the frame is constrcuted with a depression, A'", intervening between the columns A' and A%2D, which leaves exposed a seat which is entirely open upward, so as to give convenient access to the lower arbor-bearing, to attach, inspect, and regulate it, and also detach it, with its journal-box, by lifting the arbor and jornal-box bodily upward without removing the pulley from the arbor. In the defendants' machine the seat is not entirely open upward, and there is a hole hole through the body of the frame to receive the lower arbor-bearing, and the arbor-bearing cannot be removed without detaching the pulley from the arbor. This claims is not infringed. As to claim 2, it is for the arrangement and combination of the three-sided frame A A' A%2D and the depression A'" with the horizontally and vertically adjustable arbor-bearing, consisting of the pillowblock or pedestal C, the two co-axial horizontal bolts, D D', the box or bearing E E§, the vertical set-screw G which adjusts the box E E§ to horizontality, the horizontal set-screw H which adjusts the box E E§ to a common vertical plane with the upper arbor, and the base A which carries the pillow-block or pedestal C. All these features in combination are made necessary in claim 2. It claims a combination of the frame and depression of claim 1 with the special construction of arbor-bearing set forth. The defendants do not have the frame and depression of claim 1, as already shown, and thus to not have that element of the combination covered by claim 2. Moreover, the co-axial bolts D D§ are a necessary feature of the peculiar arbot-bearing of the patent, and no such bolts are found in the defendants' machine; and, if it has any any means of adjusting the lower arbor-bearing, either horizontally or vertically, in the sense in which such adjustment is described in the patent, it has not the same means or equivalent means to what is found in the patent. As to claim 3, it is for the arrangement of the step or saddle, K, with the upper arbor-bearing, L L*§, contained in it. What is the arrangement of the step or saddle, K, in connection with the arborbearing? The saddle moves through vertical slide-ways and it has pivoted to it a lug, l, which depends rigidly from the arbor-bearing. A screw, N, tapped into the lug, l, bears against the face of the saddle, so as to allow of the adjustment in a vertical plane of the upper arbor-bearing. The saddle has also a horizontal extension, k, which bears on the point of a screw, M, occupying a nut, T, which rests on a spring or cushion, O, in the bottom of the slot. By turning the screw, M, to the right or the left the upper arbor-bearing is elevated or depressed, and thus more or less tension is given to the saw. The spring, O, gives an elastic character to the tension. The effect of the arrangement or combination is to the tension. The effect of the arrangement or combination is to give an elastic vertical adjustment with the lug, l, and the extension, k, is to adjust the arbor-bearing up and sown and sidewise, and at the same time give an elastic tension to the saw. The spring carries the weight of the saddle. There can be no operative arrangement of the saddle with the arbor-bearing which does not include the lug, l, the screw, N, the extension, k, the screw M, the nut T, and the spring O. These are all elements in the arrangement or combination covered by claim 3. The spring is essential in the patent, as a part of claim 2. The defendants have a rigid saddle, and no spring. The fact that the spring is an element in claims 5 and 6 does not prevent its being an element in claim 3. There being no infringements of of claims 2 and 3 there is none of claim 4. The claims of the patents sued on in this case are claims for combinations. In such a claim, if the patentee specifies any element as entering into the combination, either directly by the language of the claim, or by such a reference to the descriptive part of the specification as carries such element into the claim, he makes such element material to the combination, and the court cannot declare it to be immaterial. It is his province to make his own claim and his privliege to restrict it. If it be a claim to a combination, and be restricted to specified elements, all must be regarded as material, leaving open only the question whether an omitted part is supplied by an equivalent device or instrumentality. Water-meter Co. v. Desper, 101 U. S. 332, 337; Gage v. Herring, 107 U. S. 640, 648; [S. C. 2 Sup Cr. Rep. 819.] The circuit court decreed a dismissal of the bill, and, the plaintiff having appealed, the decree is affirmed.
107.US.769	1. By issuing, pursuant to her "funding act" of March 30, 1871, her bonds with interest coupons thereto attached, the State of Virginia entered into a valid contract with every holder of the coupons, whereby she bound herself to receive them at and after their maturity for all taxes and demands due the State. So much of any enactment as forbids the receipt of the coupons for such taxes and demands impairs the obligation of the contract, and is void. 2. When the coupons were issued, the holder of them could, by the then existing law of the'State, as interpreted by her court of last resort, enforce his right under the contract by suing out of that court a mandamus compelling the receipt of them by the proper tax-collector, who had refused to accept them when duly offered in payment of State taxes; and the plaintiff, if'on the return to the writ judgment was rendered in his favor, could furthermore recover his costs with such damages as a jury might assess, and have forthwith a peremptory writ. By sect. 4 of an act passed Jan. 14, 1882, post, p. 771, when in such a case a mandamus is prayed for against the collector, the law imposes upon him as a duty to answer that he is ready to receive the offered coupon as soon as it shall be ascertained to be genuine and legally receivable for taxes. The taxpayer is then required to pay his taxes in lawful money, and file his coupon in the Court of Appeals. by which it is forwarded to the county court of the county, or to the hustings court of the city, where the taxes are payable, with directions to frame an issue as to whether it is genuine and legally receivable for taxes. Each party is entitled to exceptions and an appeal. If the issue is found for the petitioner, a mandamus is issued, and the money he paid is to be refunded to him out of the State treasury, in preference to all other claims. Held, that said sect. 4 furnishes an adequate and efficacious remedy substantially equivalent to that which existed at the date when the coupons were issued, whereby the rights of the holder of them, in case the collector refuses to receive them for taxes, can be maintained and enforced, and that the obligation of his contract with the State is not thereby impaired. VOL. XVII. 49 approved April 7, 1882, after this suit was brought, repeals said sect. 4 of the act of Jan. 14, 1882, but holds that, if such is its effect, the remedy of the taxpayer is not rendered less efficient, inasmuch as the remaining sections furnish a proceeding which is an exact equivalent of that by ,nandamus, the real matter submitted for determination being whether his coupon ought to have been received in payment of his taxes; and if the issue is found for him, the provision is, without further legislative action, sufficient to authorize and require that the money which he deposited for that purpose shall be refunded to him from the State treasury.	On the thirtieth of March, 1971, the general assembly of Virginia passed an act to provide for the funding and payment of the public debt, by which two-thirds of the amount due on old bonds might be funded in new bonds, with interest coupons attached, 'receivable at and after maturity for all taxes, debts, dues, and demands due the state.' Under this act many bonds were put out with coupons which expressed on their face that they were receivable for taxes. On the seventh of March, 1872, however, the general assembly passed another act prohibiting the officers charged by law with the collection of taxes from receiving in payment anything else than gold and silver coin, United States treasury notes, and notes of the national banks, and repealing all other acts inconsistent therewith. The supreme court of appeals of Virginia decided, at its November term, 1872, in the case of Antoni v. Wright, 22 Grat. 833, that in issuing these bonds the state entered into a valid contract with all persons taking the coupons to receive them in payment of taxes and state dues, and that the act of 1872, so far as it conflicted with this contract, was void. The authority of this case was recognized in Wise v. Rogers, 24 Grat. 169; and in Clarke v. Tyler, 30 Grat. 137, decided in 1878, it was said: 'This decision of Antoni v. Wright * * * must be held to be the settled law of this state.' The same questions were decided in the same way here at the October term, 1880, in Greenhow v. Hartman, 102 U. S. 672, and are no longer open in this court. Any act of the state which forbids the receipt of these coupons for taxes is a violation of the contract, and void as against coupon holders. At the time the act of 1871 was passed, and when the bonds and coupons were issued, the supreme court of appeals of the state had jurisdiction to grant writs of mandamus in all cases where mandamus would lie according to the principles of the common law, if necessary to prevent a failure of justice; and in Antoni v. Wright, ubi supra, it was decided that the writ of mandamus was the proper remedy to compel a collector to accept the coupons in question when offered in payment of taxes. The case of Wise v. Rogers presented the same question, and we understand it to have been the settled practice of that court to entertain suits for similar relief. The form and mode of proceeding were regulated by statute, which provided (Code Va. 1873, p. 1023, c. 151, § 1) that when the return was made to a writ of mandamus it should state plainly and concisely the matter of law or fact relied on in opposition to the complaint; that the complainant might thereupon demur to the return, or plead thereto, or both, and that the defendant might reply, take issue on, or demur to the pleas of the complainant. The case was to be tried at the place where writs of error to the court were to be tried, (Code, p. 1051,) and after a verdict was found, or judgment rendered on demurrer or otherwise, for the person suing out the writ, he could recover his costs, with such damages as the jury might assess, and have forthwith a peremptory writ. On the fourteenth of January, 1882, the general assembly passed another act, of which the following is a copy: 'Chapter 7. An act to prevent frauds upon the commonwealth and the holders of her securities in the collection and disbursement of revenues. 'Whereas, bonds purporting to be the bonds of this commonwealth, issued by authority of the act of March 30, 1871, entitled 'An act to provide for the funding and payment of the pbulic debt,' and under the act of March 28, 1879, entitled 'An act to provide a plan of settlement of the public debt,' are in existence without authority of law; 'And whereas, other such bonds are in existence which are spurious, stolen, or forged, which bonds bear coupons in the similitude of genuine coupons, receivable for all taxes, debts, and demands due the commonwealth; 'And whereas, the coupons from such spurious, stolen, or forged bonds are received in payment of taxes, debts, and demands; 'And whereas, genuine coupons from genuine bonds, after having been received in payment of taxes, debts, and demands, are fraudulently reissued and received more than once in such payments; 'And whereas, such frauds on the rights of the holders of the aforesaid bonds impair the contract made by the commonwealth with them, that the coupons thereon should be received in payment of all taxes, debts, and demands due the said commonwealth, and at the same time defraud her out of her revenues: 'Therefore, for the purpose of protecting the rights of said bondholders, and of enforcing the said contract between them and the commonwealth, preventing frauds in the revenue of the same—— '(1) Be it enacted by the general assembly of Virginia, that whenever any tax-payer or his agent shall tender to any person whose duty it is to collect or receive taxes, debts, or demands due the commonwealth, any papers or instruments in print, writing, or engraving, purporting to be coupons detached from bonds of the commonwealth issued under the act of 1871, entitled 'An act to fund the public debt,' in payment of any such taxes, debts, and demands, the person to whom such papers are tendered shall receive the same, giving the party tendering a receipt stating that he has received the same for the purpose of identification and vertification. '(2) He shall at the same time require such tax-payer to pay his taxes in coin, legal-tender notes, or national-bank bills, and upon payment give him a receipt for the same. In case of refusal to pay, the taxes due shall be collected as all other delinquent taxes are collected. '(3) He shall make each paper as coupons so received, with the initials of the tax-payer from whom received, and the date of receipt, and shall deliver the same, securely sealed up, to the judge of the county court of the county, or hustings court of the city, in which such taxes, debts, or demands are payable. The tax-payer shall thereupon be at liberty to file his petition in said county court against the commonwealth; a summons to answer which petition shall be served on the commonwealth's attorney, who shall appear and defend the same. The petition shall allege that he has tendered certain coupons in payment of his taxes, debts, and demands, and pray that a jury be impaneled to try whether they are genuine, legal coupons, which are legally receivable for taxes, debts, and demands. Upon this petition an issue shall be made in behalf of the commonwealth which shall be tried by a jury, and either party shall have a right to exceptions on the trial, and of appeal to the circuit court and court of appeals. If it be finally decided in favor of the petitioner that the coupons tendered by him are genuine, legal coupons, which are legally receivable for taxes and so forth, then the judgment of the court shall be certified to the treasurer, who, upon the receipt thereof, shall receive said coupons for taxes, and shall refund the money before then paid for his taxes by the tax-payer out of the first money in the treasury, in preference to all other claims. '(4) Whenever any tax-payer shall apply to any court in this commonwealth for a mandamus to compel any person authorized to receive or collect taxes, debts, or demands due the commonwealth to receive coupons for taxes, it shall be the duty of such person to make returns to said mandamus that he is ready to receive said coupons in payment of such taxes, debts, and demands as soon as they have been legally ascertained to be genuine, and the coupons which by law are actually receivable. Upon such return, the court before whom the application is made shall require the petitioner to pay his taxes to the tax-collector of his county or city, or to the treasurer of the commonwealth, and upon filing the receipt for such taxes in such court the said court shall direct the petitioner to file his coupons in such court, which shall then forward the same to the county court of the county or hustings court of the city where such taxes are payable, and direct such court to frame an issue between the petitioner as plaintiff and the commonwealth as defendant as to whether the coupons so tendered are genuine coupons, legally receivable FOR TAXES. ON THE TRIAL OF THE CAUSE the attorney fOr the commonwealth in the lower courts and the attorney general in the supreme court of appeals shall appear for the commonwealth and require proof of the genuineness and legality of the coupons in issue. Either party shall be entitled to exceptions, and an appeal to the circuit court and supreme court of appeals on the trial of this issue. If the decision be finally in favor of the petitioner, the mandamus shall issue requiring the coupons to be received for said taxes and so forth, and they shall be so received; and on the certificate of such judgment the treasurer of the commonwealth shall forthwith refund to the tax-payer the amount of currency or money before then paid by him out of the first money in the treasury, in preference to all other claims. '(5) This act shall be in force from its passage.' On the twentieth of March, 1882, Andrew Antoni, who owed the state taxes to the amount of $3.15, tendered the treasurer of the city of Richmond, the lawful tax-collector, a coupon, of the issue of 1871, for $3,15, lawful money, in payment. This tender was refused, and Antoni, on the twenty-eighth of March, petitioned the supreme court of appeals for a mandamus to require its acceptance. The treasurer, on the thirtieth of March, for a return to an order to show cause, said he was ready to receive the coupon as soon as it had been legally ascertained to be genuine, and such as by law was actually receivable. To this return a demurrer was filed. Upon the hearing of the demurrer, the court being equally divided in opinion on the questions involved, 'in pursuance of an act of assembly in such case made and provided,' denied the writ. From a judgment to that effect this writ of error was brought. The question we are now to consider is not whether, if the coupon tendered is in fact genuine and such as ought, under the contract, to be received, and the tender is kept good, the treasurer can proceed to collect the tax by distraint, or such other process as the law allows, without making himself personally responsible for any trespass he may commit, but whether the act of 1882 violates any implied obligation of the state in respect to the remedies that may be employed for the enforcement of its contract, if the collector refuses to take them. It cannot be denied that, as a general rule, laws applicable to the case which are in force at the time and place of making a contract, enter into and form part of the contract itself, and 'that this embraces alike those laws which affect its validity, construction, discharge, and enforcement,' (Walker v. Whitehead, 16 Wall. 317,) but it is equally well settled that changes in the forms of action and modes of proceeding do not amount to an impairment of the obligations of a contract, if an adequate and efficacious remedy is left. This limitation upon the prohibitory clause of the constitution is respect to the legislative power of the states over the obligation of contracts was suggested by Chief Justice MARSHALL in Sturges v. Crowningshield, 4 Wheat. 200, 207, and has been uniformly acted on since. Mason v. Haile, 12 Wheat. 378; Bronson v. Kinzie, 1 How. 316; Von Hoffman v. Quincy, 4 Wall. 553; Drehman v. Stifle, 8 Wall. 602; Gunn v. Barry, 15 Wall. 623; Walker v. Whitehead, 16 Wall. 318; Terry v. Anderson, 95 U. S. 633; Tennessee v. Sneed, 96 U. S. 69; Louisiana v. Pilsbury, 105 U. S. 301. As was very properly said by Mr. Justice SWAYNE in Von Hoffman v. Quincy, ubi supra, 'it is competent for the states to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances. Whenever the result last mentioned is produced, the act is within the prohibition of the constitution, and to that extent void.' In all such cases the question becomes, therefore, one of reasonableness, and of that the legislature is primarily the judge. Jackson v. Lamphire, 3 Pet. 290; Terry v. Anderson, ubi supra. We ought never to overrule the decision of the legislative department of the government unless a palpable error has been committed. If a state of facts could exist that would justify the change in a remedy which has been made, we must presume it did exist, and that the law was passed on that account. Munn v. Illinois, 94 U. S. 132. We have nothing to do with the motives of the legislature, if what they do is within the scope of their powers under the constition. The right of the coupon holder is to have his coupon received for taxes when offered. The question here is not as to that right, but as to the remedy the holder has for its enforcement when denied. At the time the coupon was issued there was a remedy by mandamus from the supreme court of appeals to compel the tax-collector to take the coupon and cancel the tax. This implied a suit, with process, pleadings, issues, trial, and judgment. No restrictions were placed on the defenses the collector could make. He might raise such issues as he chose. Without the aid of some restraining power, the mere pendency of the suit would not prevent the collector from proceeding according to law with the collection of the tax. He might, if he went on, subject himself to liability for damages, if the tender was one he ought to have accepted; but there was nothing to prevent his going on if he chose to take this risk. Under this law the trial must be had in the supreme court of appeals, and at the time and place where that court was to be held for other purposes. There was nothing in the law to give these cases preference over others for trial. So far as we are informed, they stood as other cases before the court, and subject to such orders as should seem to be reasonable. The tax-collector could not be compelled to accept the coupon and discharge the tax until final judgment. If the final judgment was in favor of the holder, he recovered his costs and such damages as the jury might give him. Under section 4 of the act of 1882, when a mandamus is asked for, the collector is required by law to return to the alternative writ or rule 'that he is ready to receive said coupons in payment of such taxes, * * * as soon as they have been legally ascertained to be genuine, and the coupons which by law are actually receivable.' Upon such return the court must require the petitioner to pay his taxes, which being done the coupons are taken and forwarded to the county court of the county, or the hustings court of the city, where the taxes are payable, with directions to that court to frame an issue between the petitioner as plaintiff, and the commonwealth as defendant, as to whether the coupons so tendered are genuine coupons, legally receivable for taxes. Upon this issue proof of the genuineness and legality of the coupons must be made. Either party may take exceptions and carry the case, on appeal, to the circuit court and supreme court of appeals. If the decision is in favor of the petitioner a mandamus is to issue and the money he paid returned to him out of the first money in the treasury, in preference to all other claims. The following changes are thus made in the old remedy: (1) The taxes actually due must be paid in money before the court can proceed, after the collector has signified in the proper way his willingness to receive the coupons, if they are genuine and in law receivable; (2) the coupons must be filed in the court of appeals; and (3) they must be sent to the local court to have the fact of their genuineness and receivability determined, subject to an appeal to the circuit court and the supreme court of appeals. As the suit is for a mandamus, all the provisions of the general law regulating the practice, not inconsistent with the new law, remain, and if the petitioner succeeds in getting his peremptory writ he will recover his costs. No issues are required that it would not have been in the power of the collector to raise before the change was made, and there is no additional burden of proof imposed to meet the issues, so that the simple question is, whether the requirement of the advance of the taxes, and the change of the place and manner of trial, impair the obligation of the contract on the part of the state to furnish an adequate and effcacious remedy to compel a tax-collector to receive the coupons in payment of taxes, in case he will not do it without compulsion. 1. As to the payment of the taxes in advance. In this connection it must be borne in mind that the legislation, the validity of which is involved, relates alone to the collection of taxes levied under the authority of the state for the purposes of revenue. Promptness in the payment of taxes by the citizen is as important as promptness by the state in the discharge of its own obligations. In fact, ordinarily, the last cannot be done without the first. Hence, under the revenue system of the United States, the collection of the revenue in the manner prescribed by law cannot be restrained by judicial proceedings. The only remedy for an illegal exaction is payment under protest and suit to recover back the money paid. The reason is that as it is necessary the government should be able to calculate with certainty on its revenues, it is better that the individual should be required to pay what is demanded under the forms of law, and sue to recover back what he pays, than that the government should be embarrassed in its operations by a stay of collection. It is to be noticed, also, that the law which authorized the issue of the bonds and coupons did not in express terms provide that the coupon holder should have the remedy of mandamus to compel the tax-collector to take his coupons. His claim to relief in that way rests alone on the fact that when his coupon was issued mandamus was an existing form of action in the state, which the courts have decided was applicable to such a case. What the legislature has done is only to say that before this remedy can be resorted to the amount due for taxes shall be deposited in the treasury. That being done, the suit may go on. If in the suit it shall be determined that the coupons tendered are genuine, and in law receivable, the collector will be required to accept them, and the money will be restored. If, however, the judgment is against the coupon holder, the taxes will be paid, and the state will have suffered no inconvenience for want of its just revenues. Looking at the case, therefore, as one affecting the collection of the public revenue, we cannot see that the requirement of the advance of the taxes as a condition to the employment of the remedy is such an impairment of the contract as makes the requirement invalid. 2. As to the change in the place and mode of trial. We cannot think this of itself invalidates the law. So far as the change of place is concerned, it simply takes from the supreme court of appeals jurisdiction for the trial of the questions of fact, and confers precisely the same jurisdiction upon another court, with ample provision for appeal, so that in the end the authority of the court of appeals may be invoked on all matters of law. The courts on which the new jurisdiction is conferred are required by law to hold frequent terms, and the trial is to be had in the county where the taxes are to be paid. It is difficult to see how this impairs, in any manner, either the adequacy or the efficiency of the original remedy. Then, as to the manner of the trial. The deposit of the coupons with the court of appeals, if the suit is to go on, cannot be considered unreasonable. If the trial had been conducted under the old law the coupons would have to be at some time surrendered, and the precise stage of the case in which this is to be done is by no means important, so far as the present question is concerned. Neither does the positive requirement of an issue as to the genuineness and receivability of the coupons and a trial by jury affect the validity of the law. Under the old law, this same issue might have been raised, and the same trial by jury required. It certainly is not an impairment of an old remedy to make that imperative which before was discretionary. Without pursuing the subject further, we say that, in our opinion, the fourth section of the act of 1882 does not impair the obligation of any contract which the state has made with the holders of its interest coupons. After this suit was begun, but before it was tried, the general assembly of Virginia amended the section of the Code conferring jurisdiction on the supreme court of appeals in suits for mandamus, so that in now reads as follows: 'Chapter 19. An act to amend and re-enact section 4, c. 156, of the Code of 1873, in relation to mandamus, prohibition, etc. '(1) Be it enacted by the general assembly of Virginia, that chapter 156, § 4, of the Code of Virginia of 1873, be amended and re-enacted so as to read as follows: 'Sec. 4. The said supreme court, besides having jurisdiction of all such matters as are now pending therein, shall have jurisdiction to issue writs of mandamus and prohibition to the circuit and corporation courts, and to the hustings court and to the chancery court of the city of Richbnd, and in all other cases in which it may be necessary to prevent a failure of justice, in which a mandamus may issue according to the principles of the common law: provided, that no writ of mandamus, prohibition, or any other summary process whatever, shall issue in any case of the collection, or attempt to collect, revenue, or compel the collecting officers to receive anything in payment of taxes other than as provided in chapter 41, acts of assembly, approved January 26, 1882, or in any case arising out of the collection of revenue in which the applicant for the writ of process has any other remedy adequate for the protection and enforcement of his individual right, claim, and demand, if just. 'The practice and proceedings upon such writs shall be governed and regulated in all cases by the principles and practice now prevailing in respect to writs of mandamus and prohibition respectively. '(2) This act shall be in force from its passage.' This, it is claimed, repealed section 4 of the act of January, 1882, and took away entirely the remedy by mandamus. Without deciding that question, we proceed to consider the remedy provided in sections 1, 2, and 3 of the act of 1882, which, it is conceded, will remain in force even if section 4 is repealed. These sections provide, in substance, that if coupons are tendered in payment of taxes, the collector shall take and receipt for them for the purposes of identification and verification. He shall then require payment of the taxes in money, and after marking the coupons with the initials of the name of the owner, deliver them to the judge of the county court of the count, or hustings court of the city, where the taxes are payable. The tax-payer may then file his petition in the county or hustings court against the commonwealth to have a jury impaneled to try whether the coupons 'are genuine, legal coupons, which are legally receivable for taxes, debts, and demands.' The cmmonwealth may be brought into court by service of a summons on the commonwealth's attorney. Upon this petition an issue and trial by jury is to be had, with ample privileges to all parties of exception and appeal. If the suit is finally decided in favor of the tax-payer, he is to have the amount paid by him for the taxes refunded out of the first money in the treasury, in preference to all other claims. It is somewhat difficult to see any substantial difference between the remedy given by these sections and that by section 4. There the 'form' of the suit is mandamus, begun while the coupons are in the hands of the tax-payer. After the suit has been begun, the court requires a delivery of the coupons into its own possession and the payment of the amount of the taxes into the treasury. This being done, the court sends the coupons to the appropriate tribunal for adjudication, and the proceedings thereafter are in all material respects like those provided for in the other sections. The judgment is also the same, except as to the merest matters of form. In both proceedings, the object is to require the collector to accept the coupons as payment of the tax, and deliver back the money that has been deposited for the same purpose in case the coupons are not in law receivable. The petition for mandamus, filed in the court of appeals, under section 4, is the exact equivalent of the petition to be filed in the other courts, under sections 1, 2, and 3, to have the genuineness and the receivability of the coupons determined, and in both, the real matter submitted for determination is, whether the tax-payer is entitled to have back the money he has deposited to pay his taxes in case his coupons ought to have been received. Mandamus, in this class of cases, is in the nature of a suit to obtain a specific performance of a contract. But in the present case the performance sought is the payment of money, and the remedy substituted is equivalent to a suit at law for its recovery, with ample provision for the satisfaction of any judgment that may be obtained; for it is made the ministerial duty of the treasurer to pay the amount of the recovery out of the first money in the treasury, and in preference to all other claims, as soon as the judgment is properly certified. The language of the act is, 'shall refund the money before then paid for his taxes by the tax-payer out of the first money in the treasury, in preference to all other claims.' Clearly this is an appropriation by law of money in the treasury, within the meaning of article 10, § 10, of the constitution of Virginia, and the treasurer would be authorized to make the payment without further legislative action. It will be time enough to consider the effect of a repeal of this branch of the remedy when that shall be attempted. The primary obligation of the state is for the payment of the coupons. All else is simply as a means to that end. It matters not whether the coupons have been refused for the taxes, if full payment of the amount they call for is actually made in money. A remedy, therefore, which is ample for the enforcement of the payment of the money is ample for all the purposes of the contract. That, we think, is given by the act of 1882 in both forms of proceeding. Some objection is made to the first, second, and third sections because there is no provision for the recovery of costs. Without determining whether in point of fact costs can be recovered, it is sufficient to say that costs, eo nomine, were not recoverable at common law, and are usually regulated by statute. Certainly, it would not be claimed that the change of an ordinary statute, which provided a remedy for the enforcement of contracts, so as to prevent the recovery of costs when they had been given before, would impair the obligation of contracts between individuals that were affected by what was done, and we see no reason why one rule, in this particular, should be applied to individuals and another to the state. In conclusion, we repeat that the question presented by this record is not whether the tax-collector is bound in law to receive the coupon, notwithstanding legislation which, on its face, prohibits him from doing so, nor whether, if he refuses to take the coupon and proceeds with the collection of the tax by force, he can be made personally responsible in damages for what he does, but whether the obligation of the contract has been impaired by the changes which have been made in the remedies for its enforcement in case he refuses to accept the coupons. We dicide only the question which is actually before us. It is no doubt true that the commercial value of the bonds and coupons has been impaired by the hostile legislation of the state, but this impairement, in our opinion, comes, not from the change of remedies, but from the refusal to accept the coupons without suit. What we are called upon to consider in this case is, not the refusal to take the coupons, but the remedy after refusal. We might have satisfied ourselves by a reference to the case of Tennessee v. Sneed, ubi supra, where the same general question was before us; but as we were asked to reconsider that case, we have done so with the same result, and, as we think, without in any manner departing from the long line of cases in which the principal involved has been recognized and applied. Inasmuch as we are satisfied that a remedy is given by the act of 1882, substantially equivalent to that in force when the coupons were issued, we have not deemed it necessary to consider what would be the effect of a statute taking away all remedies. The judgment is affirmed. MATTHEWS, J. I concur in the judgment of the court, but prefer to rest the decision upon a ground different from that on which it is placed in its opinion. I agree that the state of Virginia, by the act of 1871, entered into a valid contract with the holders of its bonds to receive their coupons in payment of taxes; and that any subsequent statute which denies this right is a breach of its contract and a violation of the constitution of the United States. But for a breach of its contract by a state, no remedy is provided by the constitution of the United States against the state itself; and a suit to compel the officers of a state to do the acts which constitute a performance of its contract by the state, is a suit against the state itself. If the state furnishes a remedy by process against itself or its officers, that process may be pursued, because it has consented to submit itself to that extent to the jurisdiction of the courts; but if it chooses to withdraw its consent by a repeal of all remedies, it is restored to the immunity from suit, which belongs to it as a political community, responsible in that particular to no superior. I adopt, as decisive of the present case, the language of the chief justice, in expressing the opinion of the court in the cases of the State v. Jumel and Elliott v. Wiltz, [post:] 'When a state submits itself without reservation to the jurisdiction of a court in a particular case, that jurisdiction may be used to give full effect to what the state has, by its act of submission, allowed to be done; and if the law permits coercion of the public officers to enforce any judgment that may be rendered, then such coercion may be employed for that purpose. But this is very far from authorizing the courts, when a state cannot be sued, to set up its jurisdiction over the officers in charge of the public moneys, so as to control them as against the political power in their administration of the finances of the state.' I do not, therefore, consider it necessary to enter upon the inquiry, whether the remedy provided by the state of Virginia, by the act of 1882, is effective and substantial, compared with that which existed in 1871, when the bonds were issued. It is sufficient to say that it is the one which the state has chosen to give, and the only one, therefore, which the courts of the United States are authorized to administer. BRADLEY and GRAY, JJ., concurred in the judgment upon both grounds: that stated in the opinion of the court as delivered by the chief justice, and that stated in the opinion of Mr. Justice MATTHEWS. FIELD, J., dissenting. I am not able to agree with the majority of the court in the judgment in this case, nor in the reasoning on which it is founded. The legislation of Virginia, which is sustained, appears to me to be in flagrant violation of the contract with her creditors under the act of March 30, 1871, commonly known as the funding act; and the doctrines advanced by the court, though not so intended, do, in fact, license any disregard of her obligations which the ill-advised policy of her legislators may suggest. The plaintiff in error, the petitioner in the court below, is a citizen of Virginia and a resident of the city of Richmond. He owns property there, and on the twentieth of March, 1882, was indebted to the state for taxes to the amount of $3.15. At that time he was also the lawful holder of an overdue interest coupon for $3, which had been cut from a bond of the state, issued under the provisions of the funding act. This coupon is in the following words: 'The commonwealth of Virginia will pay the bearer three dollars, interest due first of January, 1882, on bond 6,498. 'GEORGE RYE, 'Treasurer of the Commonwealth of Virginia. 'Coupon No. 21.' And on its face it thus declares: 'Receivable at and after maturity for all taxes, debts, and demands due the state.' The receivability of such coupons for state taxes, debts, and demands was, as will hereafter be shown, the principal consideration for the surrender of former bonds of the state and the acceptance of a less number in their place. The petitioner, in payment of his taxes, tendered the coupon he held and 15 cents in money to the treasurer of Richmond, who was charged by law with the duty of collecting taxes due to the state in that city, but he refused to receive them. Application was then made to the supreme court of appeals to compel their receipt. The treasurer set up in his answer that he was ready to receive the coupon in payment of the taxes as soon as it was ascertained to be genuine and legally receivable. This answer was founded upon the provisions of the act of January 14, 1882, entitled 'An act to punish frauds upon the commonwealth and the holders of her securities in the collection and disbursement of revenues.' Upon the validity of its provisions the judges of the court of appeals equally divided, and the application failed. The preamble of the act recites that bonds purporting to be those of the commonwealth, issued under the act of March 30, 1871, are in existence without authority of law; that other bonds are in existence, which are spurious, stolen, or forged, bearing coupons in the similitude of those which are genuine, and receivable for taxes, debts, and demands of the state; that coupons from such spurious, stolen, and forged bonds are received in payment of such taxes, debts, and demands; that coupons from genuine bonds, after having been thus received, are frequently reissued and received more than once in such payment; and that such frauds on the rights of the holders of the bonds impair the contract made by the commonwealth with them, and, therefore, for the alleged purpose of protecting the rights of the bondholders, and of enforcing the contract between them and the state, the act declares that whenever any tax-payer or his agent shall tender to a collector any papers or instruments in print purporting to be coupons detached from bonds of the commonwealth, issued under the act of 1871, to fund the public debt, the collector shall receive the same, and give the party tendering a receipt, stating that he has received them for the purpose of identification and verification; that he shall, at the same time, require such tax-payer to pay his taxes in coin, legal-tender notes, or national-bank bills, and if payment be refused, the taxes shall be collected as other delinquent taxes; that the collector shall mark each coupon thus received with the initials of the tax-payer, and deliver them sealed up to the judge of the county court of the county, or hustings court of the city, in which the taxes are payable. It then provides that the tax-payer shall be at liberty to file his petition in said county court against the commonwealth; that a summons to answer the same shall be served on the commonwealth's attorney, who is to appear and defend the same; that in his petition the tax-payer must allege that he has tendered the coupons in payment of his taxes, and pray that a jury be impaneled 'to try whether they are genuine legal coupons, which are legally receivable for taxes, debts, and demands.' Upon this petition an issue is to be made on behalf of the commonwealth, which is to be tried by a jury, and either party is to have a right to exceptions on the trial, and to an appeal to the circuit court, and ultimately to the court of appeals. If it be finally decided in favor of the petitioner that the coupons are 'genuine legal coupons, receivable for taxes, and so forth,' then the judgment of the court is to be certified to the treasurer of the commonwealth, who, upon receipt thereof, shall receive the coupons for taxes and refund to the tax-payer the amount before paid by him out of the first money in the treasury, in preference to other claims. The act also provides that whenever any tax-payer applies to a court for a mandamus to compel a collector of taxes to receive coupons for them, it shall be the duty of the collector to return that he is ready to receive, in payment of the taxes, the coupons as soon as they have been legally ascertained to be genuine, and by law actually receivable; and that, upon such return being made, the court shall require the petitioner to pay his taxes to the collector of the city or county, or to the treasurer of the commonwealth; and upon filing the receipt for the same, that the court shall direct the petitioner to file his coupons in court, which shall then forward the same to the county court of the county, or hustings court of the city, where the taxes are payable, and direct that court to frame an issue between the petitioner and the commonwealth as to whether the coupons thus tendered are genuine and legally receivable for taxes. On the trial either party is to be entitled to exceptions, and to an appeal to the circuit court and to the supreme court of appeals. If the decision be finally in favor of the petitioner, he is to be entitled to a mandamus that the coupon be received for taxes; but inasmuch as those taxes have already been paid, they are to be refunded by the treasurer of the commonwealth out of the first money in the treasury in preference to all other claims. A subsequent act, passed on the seventh of April, 1882, amending a section of the Code of Virginia of 1873, prohibits the supreme court of appeals from issuing the writ of mandamus or any other summary process to compel the collecting officers of the state to receive anything in payment of taxes other than gold or silver, treasury notes of the United States, or bills of the national banks. The question for decision here is as to the constitutionality of the act of January 14, 1882, which destroys the receivability of the coupon for taxes, allows a suit for the recovery of its amount only after they have been paid, and authorizes a recovery only when the jury have found that it is genuine and legally receivable for them, and of the act of April 7, 1882, which withdraws from the supreme court of appeals the power to compel the receivability of the coupon for taxes. In other words, do these acts impair the obligation of the contract upon which the coupons were originally issued? A brief reference to the history of the funding act of 1871 will serve to place this subject in a clear light. Prior to the late war Virginia constructed various public works, and to enable her to do so she borrowed large sums of money, for which she issued her bonds, exceeding in amount $30,000,000. The interest on them was regularly paid up to the breaking out of the war. Afterwards its payment ceased, and until 1871, with the exception of some small sums remitted to London for foreign bondholders, or paid in Virginia in confederate money, and a small amount in 1866 and 1867, no part of the interest or principal was ever paid. In 1871 the principal of her debt, with its unpaid and overdue interest, amounted to over $45,000,000. During the war the people of a portion of her territory separated from her, and formed a new state, by the name of West Virginia, which was admitted by congress into the Union. Nearly one-third of the territory of Virginia and one-third of her people were thus with-drawn from her original limits and jurisdiction. Her then indebtedness was justly chargeable against her and the new state in some ratable proportion. The money raised by her bonds had been expended in improvements throughout the entire territory. All portions of it had participated in the benefits conferred by the expenditure of the moneys. It was but just, therefore, that the new state should assume and pay an equitable proportion of the debt. It is a well-settled doctrine of public law that upon a division of a state into two or more states, her debts shall be ratably apportioned among them. See authorities upon this subject in Hartman v. Greenhow, 102 U. S. 677. In conformity with this doctrine West Virginia, in her first constitution, adopted in 1863, recognized her liability in this respect and declared that 'an equitable proportion of the public debt of the commonwealth of Virginia prior to the first day of January in the year 1861 shall be assumed by this state, and the legislature shall ascertain the same as soon as may be practicable, and provide for the liquidation thereof by a sinking fund sufficienr to pay the accruing interest, and redeem the principal within 34 years.' Constitution of 1863, art. 8, § 8. She, however, did nothing up to 1871, to give effect to this unequivocal and solemn recognition of her liability, or to her positive injunction that the legislature should, as soon as practicable, ascertain the same and provide for its liquidation; and she has done nothing since. The commonwealth of Virginia, nevertheless, undertook in that year to effect a settlement with her creditors, taking as a basis that inasmuch as one-third of her former territory and population was embraced in the new state, the latter should assume one-third of the debt and the commonwealth should settle for the remainder. Accordingly, her legislature, on the thirtieth of March, 1871, passed the funding act. It is entitled 'An act to provide for the funding and payment of the public debt.' Its preamble recites that in the ordinance authorizing the creation of the state of West Virginia, it was provided that she should take upon herself a just proportion of the public debt of the commonwealth of Virginia, prior to the first day of January, 1861, and that this provision has not been fulfilled, although repeated and earnest efforts in that behalf have been made by Virginia, and that the people of the commonwealth are anxious for the prompt liquidation of her proportion of the debt, estimated at two-thirds of the same; and then declares that to enable the state of West Virginia to settle her proportion of said debt with the holders thereof, and to prevent any complications or difficulties which may be interposed to any other manner of settlement, and for the purpose of promptly restoring the credit of Virginia, by providing for the prompt and certain payment of the interest upon the just proportion of her debt as the same should become due, the legislature enacts that the owners of the bonds, stocks, or interest certificates of the state, with some exceptions, may fund two-thirds of the amount of the same, together with two-thirds of the interest due, or to become due thereon, up to July 1, 1871, in 6 per cent. coupon or registered bonds of the state, having 34 years to run, but redeemable at the pleasure of the state after 10 years, the bonds to be made payable to order or bearer, and the coupons to bearer. The act declares that the coupons shall be payable semi-annually, and 'be receivable at and after maturity for all taxes, dues, and demands due the state,' which shall be so expressed on their face, and that the bonds shall bear on their face a declaration to the effect that their redemption is secured by a sinking fund, provided for by the law under which they were issued. For the remaining one-third of the amount of the bonds thus funded the act provides that certificates shall be issued to the creditors, setting forth the amount, with the interest thereon, and that their payment shall be provided for in accordance with such settlement as may subsequently be made between the two states, and that Virginia will hold the bonds surrendered, so far as they are not funded, in trust for the holder or his assignees. This act induced a large number of creditors to surrender their bonds, and take new bonds, with interest coupons annexed, for two-thirds of their amount, and certificates for the balance. The number of bonds surrendered amounted to about thirty millions of dollars, for which new bonds to the amount of twenty millions were issued. A contract was thus executed between the state and the holders of the new coupons which the state could not afterwards impair. As this court, with only one dissenting member, said in Hartman v. Greenhow, with respect to this contract: 'She thus bound herself not only to pay the bonds when they became due but to receive the interest coupons from the bearer at and after their maturity, to their full amount, for any taxes or dues by him to the state. This receivability of the coupons for such taxes and dues was written on their face, and accompanied them into whatever hands they passed. It constituted their chief value, and was the main consideration offered to the holders of the old bonds to surrender them and accept new bonds for two-thirds of their amount.' 102 U. S. 679. The supreme court of appeals of Virginia had previously spoken, with respect to this contract, with equal clearness. Notwithstanding the language of the act of March 30, 1871, declaring that the interest coupons of the new bonds shall be 'receivable at and after maturity for all taxes, debts, dues, and demands due the state,' and this is expressed upon their face, the legislature of Virginia, within less than a year afterwards, on March 7, 1872, passed an act declaring that it shall not be lawful for any officers charged with the collection of taxes or other demands of the state then due, or to become due, 'to receive in payment thereof anything else than gold or silver coin, United States treasury notes, or notes of the national banks.' As this act was in direct conflict with that of March 30, 1871, its validity was assailed, and came before the court of appeals in Antoni v. Wright, at the November term, 1872. 22 Grat. 833. In an opinion of great ability and learning, the character and effect of the funding act were elaborately considered; and it was held that its provisions constituted a contract founded upon valuable considerations and binding upon the state. By the decision of the state court in that case, and of this court in Hartman v. Greenhow, the receivability of the coupons for taxes and demands of the state was held to be an essential part of the contract on which the bonds were received, and to constitute the chief value of the coupon and the principal inducement offered for the surrender of the old bonds, and the acceptance of two-thirds of their amount. When the legislature subsequently attempted to annul this receivability, and required coin or currency to be received for taxes, the court of appeals held that such interference with the receivability of the coupons impaired the obligation of the contract, and was void. When again the legislature attempted to impair that receivability by requiring the tax on the bond to which it originally belonged to be first deducted from the amount of the coupon before it could be received for other taxes, this court held that the legislation impaired the obligation of the contract. But now, strange to say, a law is sustained as not impairing the obligation of the contract, although it prohibits the receivability of the coupons for state taxes, dues, and demands, and requires the holder to pay them in soin, treasury notes, or bills of the national banks, and, in return, gives him the privilege only, upon surrendering it, to test its genuineness and its receivability for taxes by instituting a suit in which a jury is to be summoned, and any decision obtained may be taken to the circuit court and to the court of appeals. If final judgment shall be obtained that the coupon is genuine, and be legally receivable for taxes, the court is required to certify it to the treasurer of the commonwealth, who shall then receive the coupon for taxes,—that is to say, long after they are paid,—and refund its amount out of the first money in the treasury in preference to other claims. If there be no money in the treasury not otherwise appropriated, he may have to wait an indefinite period until the treasury is replenished. Not only does this act entail prolonged delay and expense in every case, but, in a majority of cases, the expense would exceed the amount of the coupon. Where only a few hundred dollars in bonds are held, the amount of the coupons would not justify the expenditure. Coupons for small amounts are thus rendered practically of no value. Their receivability for taxes, dues, and demands of the state is effectually destroyed. Under the act of January 14, 1882, there is no equivalent given to the creditor for the receivability of the coupon for taxes. The right to enforce on demand payment of a particular claim essentially differs, both in availability and value, from a right to reduce the claim to judgment after protracted litigation, and particularly when, even after judgment, a further delay is necessary to wait until there are funds in the treasury of the state to pay it. It would excite surprise in any commercial community if a bank, whose bills purport on their face to be payable on demand, should declare that inasmuch as there were some forged notes upon it in circulation, therefore it would pay only such as the holder should judicially establish to be genuine. It has been decided that any unnecessary delay by a bank in examining its bills to determine their genuineness is equivalent to a refusal to redeem them. A bank resorting to such a flimsy pretext to evade payment would at once be pronounced insolvent, and be put into the hands of a receiver. No weight is to be given to the recitals in the preamble of the act of January 14, 1882, as to outstanding forged bonds and coupons. In the first place, the state, by reciting that various frauds have been committed with respect to some of her securities, cannot legislate to impair the obligation of her contracts. In the second place, we are justified in considering that these recitals are without foundation in fact. According to the established doctrine of this country, the most which can be attributed to a recital of facts in the preamble of an act is that it was represented to the legislature that they existed. It is not the province of the legislature to find facts which shall affect the rights of others; that is the province of the judiciary. Says Cooley: 'A recital of facts in the preamble of a statute may, perhaps, be evidence when it relates to matters of a public nature, as that riots or disorders exist in a certain part of the country; but when the facts concern the rights of individuals, the legislature cannot adjudicate upon them.' Const. Lim. 96. 'The legislature, in all its inquiring forms by committees, makes no issue, and in their discretion may or may not coerce the attendance of witnesses, or the production of records, and are frequently not bound by those rules of evidence applicable to an issue properly formed, the trial of which is an exercise of judicial power. Once adopt the principle that such facts are conclusive, or even prima facie evidence against private rights, and many individual controversies may be prejudged, and drawn from the functions of the judiciary into the vortex of legislative usurpation. The appropriate functions of the legislature are to make laws to operate on future incidents, and not a decision of or forestalling rights accrued or vested under previous laws.' Elmendorf v. Carmichael, 3 Litt. 480. In the case from which this citation is made two acts were under consideration. The recital in the preamble of one was that a certain person was a naturalized citizen; the recital in the preamble of the other was of a letter of attorney and a conveyance by a third party; and the court said: 'Such a preamble is evidence that the facts were so represented to the legislature, and not that they are really true.' Although the language cited was used with reference to the preamble of a private statute, Sedgwick, in his Treatise on the Interpretation and Construction of Statutory and Constitutional Law, after quoting it, says: 'This reasoning applies with as much force to public as to private statutes; and the supreme court of New York has well said that the legislature has no jurisdiction to determine facts touching the rights of individuals.' The weight usually accorded to a recital of matters of fact in the preamble of an act, that the facts were so represented to the legislature, cannot be allowed here; for the journals of the legislature of Virginia show that it had information when the act was passed that the very opposite of the recitals was true—that there were no forged or counterfeit bonds or coupons in existence, as therein stated. The journals may be referred to in order to show what was brought to the attention of the legislature, and those journals show that in 1880 the house of delegates of Virginia appointed a committee to examine the office of the second auditor, who is the custodian of all papers relating to the debt of the state, to ascertain whether there were any forged or counterfeit bonds or coupons among them; and the committee reported that they were unable to find a single forged or counterfeit bond or coupon; and of the millions of dollars in coupons which had been paid into the treasury since 1871, all were accounted for except coupons to the amount of $28,197. As it was the duty of the officer on receiving the coupons to cancel them, it must be presumed that these were properly canceled by him at the time. Again, in answer to a resolution of the house of delegates, dated January 9, 1882, the second auditor reported that no counterfeit or forged obligations, bonds, coupons, or certificates of the state had in any way come to his knowledge. And in answer to a resolution of the senate of the sixteenth of January, 1882, the same auditor replied that he had no knowledge of any spurious or forged bonds or coupons issued or purporting to be issued under the funding act of March 30, 1871; and in an examination had into the matter, a clerk in the second auditor's office testified that he was familiar with the coupons issued under the act of March 30, 1871, and had handled about seven millions of them, and had never seen or heard of a counterfeit coupon. Another witness connected with the treasurer's office stated that he was familiar with the conduct and management of both the second auditor's office and of the treasurer's office, and that he had never heard of a duplicate or forged coupon. In the third place, assuming that the $28,197 in coupons which could not be found in the auditor's office or accounted for had not been canceled, but had been mislaid, lost, or stolen, the holders of other coupons ought not to be deprived of their use because the officers of the auditor's department had been neglectful of their duties. Assuming, also, against the fact that there were forged and spurious coupons of the state, their existence did not warrant a rejection of such as are genuine. Although no officer questions their genuineness when tendered, the holder of them must make up an issue with the state to try the fact before a jury. The act was evidently designed to accomplish much more than the protection of the holders of genuine coupons. As justly said by one of the judges of the court of appeals: 'While its professed object in its title is to prevent frauds upon the commonwealth and the holders of its securities, it greatly depreciates the value of those securities, and thereby impairs the obligation of contracts, under the vain pretext that it is necessary to protect the commonwealth against frauds. It not only destroys or renders almost valueless the coupon, but also the coupon bonds, amounting to millions of dollars, issued by the state by authority of the act of March 30, 1871, and whose value depends upon the prompt payment of interest, of which assurance was given by the state to the holders of those bonds by the stipulation in the contract that the coupons at and after maturity should be receivable for all taxes, debts, etc., due the state. This statute prohibits revenue officers to receive any coupons, though unquestionably genuine, when tendered for and in discharge of taxes, etc., due the state, and requires the bearer of the coupon so tendered to pay his taxes in coin or other currency, which I think is plainly a repudiation or annulment of the state's contract.' The clause of the constitution which declares that no state shall pass any law impairing the obligation of contracts, prohibits legislation thus affecting contracts between the state and individuals equally as it does contracts between individuals. Indeed, the greater number of cases, in which the protection of the constitutional provision has been invoked against subsequent legislative impairment of contracts, has been of those in which the state was one of the contracting parties. Where a state enters the markets of the world and becomes a borrower, she lays aside her sovereignty and takes upon herself the position of an ordinary civil corporation, or of an individual, and is bound accordingly. Davis v. Gray, 16 Wall. 232; Murray v. Charleston, 96 U. S. 445; Hall v. Wisconsin, 103 U. S. 11. What, then, was the obligation of the contract entered into between Virginia and her creditors under the funding act of 1871, so far as the interest coupons are concerned? The contract is that she will pay the amount of the coupon, and that it shall, at and after maturity, be receivable for taxes, dues, and demands of the state. And by its receivability is meant that it is to be taken by officers whom the state may authorize to receive money for its dues whenever tendered for them. By the obligation of a contract is meant the means which the law affords for its execution; the means by which it could, at the time it was made, be enforced. As said by the court in McCracken v. Hayward: 'The obligation of a contract consists in its binding force on the party who makes it. This depends on the laws in existence when it is made; these are necessarily referred to in all contracts and form a part of them as the measure of the obligation to perform them by the one party and the right acquired by the other.' 2 How. 612. To the same purport and still more emphatic is the language of the court in Walker v. Whitehead, 16 Wall. 317: 'The laws which exist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it. This embraces alike those which affect its validity, construction, discharge, and enforcement. Nothing is more material to the obligation of a contract than the means of its enforcement. The ideas of validity and remedy are inseparable, and both are parts of the obligation which is guarantied by the constitution against impairment.' In other words, to quote the language of Professor Pomeroy in his work on Constitutional Law,— 'A party may demand that substantially the same remedial right appropriate to his contract when it was entered into shall be accorded to him when it is broken.' 'Under our system of jurisprudence,' says the same writer, 'two forms of remedial right may result to the injured party upon the breach of a contract; the one form applying to a small number only of agreements, the other being appropriate to all. The first is the right to have done exactly what the defaulting party promised to do,—the remedial right to a specific performance. The other is compensatory, or the right to be paid such an amount of pecuniary damages as shall be a compensation for the injury caused by the failure of the defaulting party to do exactly what he promised to do. Both of these species of remedial rights must be pursued by the aid of the courts. In both, the existence of the contract and of the breach must be established. These facts having been sufficiently ascertained, a decree or judicial order must be rendered, in the first case, that the defaulting party do exactly what he undertook to do, and in the second case, that the defaulting party pay the sum of money fixed as a compensation for his delict.' Sections 611, 612. The receivability of the coupon, under the funding act of 1871, for taxes, dues, and demands, gave to it, as already said, its principal value. At that time there was provided, in the system of procedure of this state, a remedy for the specific execution of the contract, by which this receivability could be enforced. The legislation of January 14, and April 7, 1882, deprives the holder of the coupon of this remedy, and in lieu of it gives him the barren privilege, after paying the taxes, of suing in a local court to test before a jury the genuineness of the coupon and its legal receivability for them, and, in case he establishes these facts, of having a judgment to that effect certified to the treasurer of the commonwealth, and the amount paid refunded out of money in the treasury, if there be any. To recover this judgment he must pay the cost of the proceeding, including the fees of witnesses and jurors, and of the clerk, sheriff, and other officers of the court. This is a most palpable and flagrant impairment of the obligation of the contract. No legislation more destructive of all value to the contract is conceivable, unless it should absolutely and in terms repudiate the coupon as a contract at all. It is practical repudiation. In Bronson v. Kinzie, this court, speaking by Chief Justice TANEY, said: 'It is difficult, perhaps, to draw a line that would be applicable in all cases between legitimate alterations of the remedy and provisions which, in the form of remedy, impair the right. But it is manifest that the obligation of a contract, and the rights of a party under it, may in effect be destroyed by denying a remedy altogether, or may be seriously impaired by burdening the proceedings with new conditions and restrictions, so as to make the remedy hardly worth pursuing. And no one, we presume, would say that there is any substantial difference between a retrospective law, declaring a particular contract or class of contracts to be abrogated and void, and one which took away all remedy to enforce them, or incumbered it with conditions that rendered it useless or impracticable to pursue it.' 1 How. 317. In Planters' Bank v. Sharp this court said: 'One of the tests that a contract has been impaired, is that its value has by legislation been diminished. It is not, by the constitution, to be impaired at all. This is not a question of degree or manner or cause, but of encroaching in any respect on its obligation, dispensing with any part of its force.' 6 How. 327. In Murray v. Charleston the court cited with approval the language of a previous decision to the effect that a law which alters the terms of a contract by imposing new conditions, or dispensing with those expressed, impairs its obligation; and added, speaking by Mr. Justice STRONG, who recently occupied a seat on this bench, that 'it is one of the highest duties of this court to take care the prohibition (against the impairment of contracts) shall neither be evaded nor frittered away. Complete effect must be given to it in all its spirit.' 96 U. S. 448. In Edwards v. Kearney this court said, speaking by Mr. Justice SWAYNE, so lately one of our number: 'The remedy subsisting in a state when and where a contract is made and is to be performed is a part of its obligation, and any subsequent law of the state which so affects that remedy as substantially to impair and lessen the value of the contract, is forbidden by the constitution, and is therefore void.' 96 U. S. 607.
109.US.401	1. A provision in an act for the reorganization of an embarrassed corporation, which provides that all holders of its mortgage bonds who do not, within a given time named in the act, expressly dissent from the plan of reorganization, shall be deemed to have assented to it, and whiah provides for reasonable notice to all bondholders, does not impair the obligation of a contract, and is valid. 2. When a corporation, being embarrassed, and owing money to its mortgage bondholders and to others, was authorized by the legislature from which it obtained its franchises to make settlement 'with its creditors-on a plan which provided that all holders of its mortgage bonds who did not, within a fixed period, dissent in writing from the proposed settlement, should be deemed to have assented ; and when a large majority of such bondholders assented to such plan, and some dissented, and the plan went into operation: Held, that a holder of such bonds who had due voL. CX-26 notice, and opportunity to act, and who neither assented to nor dissented from the plan within the time, was bound by its terms as fully as if he had expressly assented to it.	The Union Canal Company of Pennsylvania, a corporation of the state of Pennsylvania, issued, in 1853, a series of bonds for the payment of money, amounting in the aggregate to $2,500,000, with coupons for semi-annual interest attached. These bonds and coupons were secured by a mortgage to trustees on the property of the company. Prior to 1862 the company became pecuniarily embarrassed, and a plan was devised by parties in interest for the settlement of its affairs and liabilities, by which the entire indebtedness, whether secured or unsecured, was to be converted into a funded debt, secured by mortgage, on which interest was to be paid only 'out of and from the clear net income and profits of the business of the corporation,' but the right of voting at elections and meetings of the corporation was to be given to bondholders as well as stockholders. On the tenth of April, 1862, the legislature of Pennsylvania passed a statute, the purpose of which was to give authority for such an agreement between the company and its creditors. The statute provided in express terms that the agreement, if entered into, should only be binding on such of the holders of the bonds of 1853 'as shall signify their assent in writing thereto; and in case any such bondholder shall fail to file with the president of such corporation his or her refusal, in writing, to concur in the said agreement within three months from the date thereof, such bondholder shall be taken to have assented to the same.' Ample provision was made for notice to the bondholders to appear and express in writing their assents or dissents, and for the preservation of all the original rights of such as dissented. Pursuant to this legislative authority, the contemplated agreement was entered into between the corporation, with the assent of its stockholders and the creditors. The notice required by the statute was given, and bondholders to the amount of only $85,000 out of the $2,500,000 filed in writing their refusal to concur. All the rest either assented in writing or failed to signify their dissent. At the time the agreement was made, Gilfillan, the plaintiff in error, owned $4,200 of the bonds of 1853, and the coupons thereon from November 1, 1857. He had actual notice of the agreement and the proceedings for its execution, but he neither signified his assent thereto in writing nor filed with the president of the company his refusal to concur. Between the time of making the agreement and the commencement of this suit there was not 'any clear net income and profits of the business' of the company. This suit was brought against the company by Gilfillan on his coupons running from November 1, 1857, to May 1, 1877, inclusive. At the trial a case was stated which presented for determination the single question whether the agreement of settlement barred the action. The supreme court of the state decided that it did, and gave judgment accordingly. To reverse that judgment this writ of error was brought. The precise point we have to decide is whether the statute which made the failure of a bondholder to signify his refusal to concur in the agreement of settlement within the specified time equivalent to an express assent in writing, impaired the obligation of his bond Mortgages of the kind of that executed by this company are of a peculiar character, and each bondholder under then enters by fair implication into certain contract relations with his associates. Such bondholders are not, like stockholders in a corporation, necessarily bound, in the absence of fraud or undue influence, by the will of the majority, when expressed in the way provided by law, but they occupy, to some extent, an analogous position towards each other. The mortgage, with the issue and distribution of bonds under it, creates a trust, of which the selected mortgagee, or his duly-constituted successor, is the trustee, and the bondholders primarily, and the stock holders ultimately, the beneficiaries. It not unfrequently happens that compromises and adjustments of conflicting interests become necessary in the course of the administration of such trusts. As in the present case, a very large majority of the bondholders sometimes think it is for their own interests as well as of that of their associates to surrender a part of their rights and accept others instead, and they prepare and submit for execution an agreement, the object of which is to carry their plan into effect. No majority, however large, can compel a minority, small though it be, to enter into such the agreement against their will; and, under the constitution of the United States, it is probable that no statute of a state, passed after the bonds were issued, subjecting the minority to the provisions of the agreement without their consent, would be valid. But it seems to us a proper exercise of legislative power to require a minority to act whenever such an arrangement is proposed, and to provide that all shall be bound who do not, in some direct way, within a reasonable time after notice, signify their refusal to concur. To sustain such legislation it is only necessary to invoke the principle enforced in statutes of limitations which make neglect to sue within a specified time conclusive evidence of the abandonment of a cause of action. As was said in Terry v. Anderson, 95 U. S. 634, where the limitation was of actions upon certain legal obligations that embarrassed the entire community at the close of the late civil war, 'the obligation of old contracts could not' in this way 'be impaired, but their prompt enforcement could be insisted upon or their abandonment claimed.' As to statutes of limitations, it has always been held that shortening the time within which actions on existing contracts must be brought impairs no obligation of the contract, if a reasonable time is given to bring a suit before the bar attaches. In Terry v. Anderson, supra, it was said: 'In all such cases the question is one of reasonableness, and we have, therefore, only to consider whether the time allowed in this statute is, under all the circumstances, reasonable. * * * In judging of that we must place ourselves in the position of the legislators, and must measure the time of limitation in the midst of the circumstances which surrounded them as nearly as possible; for what is reasonable in a particular case depends upon its particular facts.' What was said there seems to us equally applicable to the present case. There 'the business interests of the entire people of the state had been overwhelmed by a calamity common to all. Society demanded that extraordinary efforts be made to get rid of old embarrassments, and permit a reorganization on the basis of the new order of things.' Here a canal company, incumbered with a large bonded and floating debt, was bankrupt. The payment of its debts in the ordinary way was impossible. It is fair to infer from the case stated that the interest on the mortgage debt had been in arrear for years, and the floating debt which was unsecured amounted to at least $500,000, or one-fifth of the amount of the mortgage. In this condition of things, undoubtedly, the bondholders might have foreclosed their mortgage and thus secured the proceeds of a sale of the mortgaged property, but to a very large majority this seemed unadvisable, and the reason is apparent. The property they had as security was a canal and its appurtenances. Purchasers of such property at advantageous prices were not easily found. Unless the bondholders themselves bought, a large sacrifice must almost necessarily be made, and but a small sum realized for distribution. If the bondholders did buy, it might be necessary for them to operate the canal and assume corresponding liabilities. The experience of the company in the past gave no encouragement of success in such an undertaking, and so a majority of the bondholders came to the conclusion that if they could be permitted to take part to some extent in the control of the business it was better to let the property remain in the hands of the company without a foreclosure, and to demand their interest only as it could be paid out of profits actually realized. The question now is not whether this scheme was or was not a wise one. A majority of the bondholders thought it was, while some did not. Unless all, or nearly all, agreed, nothing could well be done. Hence application was made to the legislature, not to require all bondholders to adopt the plan and become bound by it, but to indicate whether they would or would not. If any said they would not, then it would be necessary for those who favored the scheme to determine whether, in view of such a dissent, they would go on and leave the dissenters at liberty to assert their rights. That would, of course, depend in a large degree upon the number of those who dissented and the amount of bonds they held. Prompt action was also important. In view of this, three months was fixed as the time within which the election must be made. There is no complaint of the length of time given, and if there was it could make no difference in this case, because Gilfillan had actual notice, and three months was certainly time enough for him to determine in his own mind whether an assent or dissent was most for his interest. So that the only question really presented to us is whether it was unreasonable to provide that a failure to dissent should be taken as an assent. What the majority wanted to know was how many would not come into the scheme, and the way the assent or dissent should be signified was a matter of but little importance, provided it was understood by the bondholders. The legislature, in the exercise of its discretion, saw fit to provide that every bondholder should be taken to have elected to become bound by the agreement, unless he filed in writing with the president of the company his refusal to concur. This was the way the vote was to be taken, and the will of the bondholders ascertained. All who did not vote against were to be counted in favor of the plan. This being understood no holder can complain, if it was within the power of the legislature to require him to act at all. If he does not wish to abandon his old rights and accept the new, all he has to do is to say so in writing to the president of the company. Inaction will be taken as conclusive evidence of abandonment, just as the failure to bring suit within the time allowed by a statute of limitation is evidence of the abandonment of an existing cause of action. The same principle was applied in Vance v. Vance, 108 U. S. ——, [2 SUP. CT. REP. 854,] where it was held that an article in the constitution of Louisiana, adopted in 1868, which provided that existing secret mortgages and privileges should cease to have effect against third persons after the first of January, 1870, unless before that time recorded, did not impair the obligation of a contract between an infant and her natural tutor. Mr. Justice MILLER, in delivering the opinion of the court, after stating that the strong current of modern legislation and judicial opinion was against the enforcement of secret liens on property, said: 'We think that the law, in requiring the owner of this tacit mortgage for the protection of innocent persons dealing with the obligor to do this much to secure his own right, and protect those in ignorance of those rights, did not impair the obligation of the contract, since it gave ample time and opportunity to do what was required, and what was eminently just to everybody.' And in Jackson v. Lamphire, 3 Pet. 290, it was said: 'It is within the undoubted power of state legislatures to pass recording acts, by which the elder grantee shall be postponed to a younger, if the prior deed is not recorded within the limited time; and the power is the same whether the deed is dated before or after the recording act.' We conclude, therefore, that it is within the just scope of legislative power to require bondholders, interested in common with others in a trust security, to signify their assent to or dissent from a plan proposed by proper persons for the compromise and adjustment of matters of difference affecting their common interests, and that the statute involved in this suit is of that character and valid. Judgment affirmed.
109.US.385	1. A bridge erected over the East River, in the harbor of New York, in accordance with authority derived from Congress and from the legislature of Ne w York, is a lawful structure which cannot be abated as a public nuisance. So far as it obstructs navigation, it obstructs it under an authority which is empowered to permit the obstruction. 2. It is competent for Congress, having authorized the construction of a bridge of a given height, over a navigable water, to empower the secretary of war to determine whether the proposed structure will be a serious obstruction to navigation, and to authorize changes in the plan of the proposed structure. 3. When the head of an executive department is required by law to give information on any subject to a citizen, he may ordinarily do this through subordinate officers in his department. 4. The navigable waters of the United States include such as are navigable in fact, and which, by themselves or their connections, form a continuous channel for commerce with foreign countries or among the States : Over these Congress has control by virtue-of the power vested in it to regulate commerce with foreign nations and among the several States. 5. The former cases, in which the court has considered the power of Congress to authorize the construction of bridges over navigable streams, referred to and considered.	This suit was commenced in May, 1876, to restrain the erection of the suspension bridge then under construction over East river, in the state of New York, between the cities of New York and Brooklyn, at the height of 135 feet above the river at high-water mark, which was the proposed elevation of the structure. As the bridge has since been completed, if the plaintiff can make good his contention, and establish that when he filed his bill he was entitled to the relief prayed, he may claim that the bridge shall be raised to a greater elevation, or be entirely abated. He is the lessee of certain warehouses on the banks of the river above the point of the proposed crossing of the bridge, and he states that he brings the suit on behalf of himself and of all others similarly situated. No one, however, has united with him in its prosecution. He stands alone as complainant, and alleges that the bridge, if erected as projected and intended to the height designated, would be built without lawful power and authority; that it would be a nuisance, and obstruct, impair, and injuriously modify the navigation of the river, and might seriously and prejudicially affect the commerce of the port of New York; that merchant vessels from the New England states and British provinces, and from ports south of New York, and vessels engaged in foreign commerce, pass and repass on the river the intended location of the bridge; that the masts of a large proportion of these vessels exceed 135 feet in height; and that the expense to them of striking parts of their masts in passing under the bridge if built as proposed, with the detention and additional towage rendered necessary, would be so great as to destroy his warehouse business and be a private and irreparable injury to him, for which an action at law would afford no adequate redress. He accordingly prays an adjudication of the court upon the character and effect of the proposed bridge in conformity with these allegations, and an injunction restraining the further prosecution of the work of building it at the height of 135 feet above mean high-water, or at any other height that would obstruct, impair, or injuriously modify the navigation of the river. The court below did not find in the allegations of a possible loss to the plaintiff in his warehouse business, or in the proofs offered to sustain them, sufficient ground to restrain the completion of the work. It dismissed his complaint as being without substantial merit. We approve of its action and decree. The erection of the bridge at the elevation proposed was authorized by the action of both the state and federal governments. It would, therefore, when completed, be a lawful structure. If, as now completed, it obstructs, in any respect, the navigation of the river, it does so merely to an extent permitted by the only authorities which could act upon the subject. And the injury then apprehended, and alleged by the plaintiff and now sustained, is only such as is common to all persons engaged in commerce on the river and doing business on its banks, and therefore not the subject of judicial cognizance. These conclusions will clearly appear by a reference to the legislation under which the work was commenced and prosecuted. It is contended by the plaintiff with much earnestness that the approval of the secretary of war of the plan and location of the bridge was not conclusive as to its character and effect upon the navigation of the river, and that it was still open to him to show that if constructed as proposed it would be an obstruction to such navigation as fully as though such approval had not been had. It is argued that congress could not give any such effect to the action of the secretary, it being judicial in its character. There is in this position a misaprehension of the purport of the act. By submitting the matter to the secretary, congress did not abdicate any of its authority to determine what should or should not be deemed an obstruction to the navigation of the river. It simply declared that, upon a certain fact being established, the bridge should be deemed a lawful structure, and employed the secretary of war as an agent to ascertain that fact. Having power to regulate commerce with foreign nations and among the several states, and navigation being a branch of that commerce, it has the control of all navigable waters between the states or connecting with the ocean, so as to preserve and protect their free navigation. Its power, therefore, to determine what shall not be deemed, so far as that commerce is concerned, an obstruction, is necessarily paramount and conclusive. It may in direct terms declare absolutely, or on conditions, that a bridge of a particular height shall not be deemed such an obstruction; and, in the latter case, make its declaration take effect when those conditions are complied with. The act in question, in requiring the approval of the secretary before the construction of the bridge was permitted, was not essentially different from a great mass of legislation, directing certain measures to be taken upon the happening of particular contingencies, or the ascertainment of particular information. The execution of a vast number of measures authorized by congress, and carried out under the direction of heads of departments, would be defeated if such were not the case. The efficiency of an act as a declaration of legislative will must, of course, come from congress, but the ascertainment of the contingency upon which the act shall take effect may be left to such agencies as it may designate. South Carolina v. Georgia, 93 U. S. 13. It is also objected that the notice given by the chief engineer to the company was not a compliance with the requirement that notification should be given by the secretary; but there is not force in the objection. When a secretary of the government is required to give information on any subject, he may act, and generally does act, through officers under him. He is not expected to make over his own signature all the communications required from the department of which he is the head. It would be impracticable for him to do so. The official communication is deemed made by him when it is made under his sanction and direction. The bridge being constructed in accordance with the legislation of both the state and federal governments, must be deemed a lawful structure. It cannot, after such legislation, be treated as a public nuisance; and however much it may interfere with the public right of navigation in the East river, and thereby affect the profits or business of private persons, it cannot, on that ground, be the subject of complaint before the courts. The plaintiff is not deprived of his property nor of the enjoyment of it; nor does he from that cause suffer any damage different in character from the rest of the public. He alleges that his business of a warehouse-keeper on the banks of the river above the bridge will be in some degree lessened by the delay attending the passage under it of vessels with high masts. The inconvenience and possible loss of business from this cause are not different from that which others on the banks of the river above the bridge may suffer. Every public improvement, while adding to the convenience of the people at large, affects more or less injuriously the interests of some. A new channel of commerce opened, turning trade into it from other courses, may affect the business and interests of persons who live on the old routes. A new mode of transportation may render of little value old conveyances. Every railway in a new country interferes with the business of stage coaches and side-way taverns; and it would not be more absurd for their owners to complain of and object to its construction than for parties on the banks of the East river to complain of and object to the improvement which connects the two great cities on the harbor of New York. Several cases have been before this court relating to bridges over navigable waters of the United States in which questions were raised as to the authority by which the bridges could be constructed, the extent to which they could be permitted to obstruct the free navigation of the waters, and the right of private parties to interfere with their construction or continuance. In these cases all the questions presented in the case at bar have been considered and determined, and what we hereafter say in this opinion will be little more than a condensation of what was there declared. The power vested in congress to regulate commerce with foreign nations and among the several states includes the control of the navigable waters of the United States so far as may be necessary to insure their free navigation; and by 'navigable waters of the United States' are meant such as are navigable in fact, and which, by themselves or their connection with other waters, form a continuous channel for commerce with foreign countries or among the states. The Daniel Ball, 10 Wall. 557. East river is such a navigable water. It enters the harbor of New York and connects it with Long Island sound. Whatever, therefore, may be necessary to preserve or improve its navigation the general government may direct; and to that end it can determine what shall and what shall not be deemed an interference with or an obstruction to such navigation. In the Wheeling Bridge Case, a bridge erected over the Ohio river at Wheeling, under an act of the legislature of Virginia, which prevented the passage of steam-boats with high chimneys, was adjudged to be an unlawful structure; and the court ordered that it should be raised so as to afford a free passage to the steamers, or that some other plan should be adopted by a day designated which would relieve the navigation from the obstruction, or that the bridge should be abated. Congress thereupon interfered, and declared the bridge, as it was built at its existing elevation, to be a lawful structure. The court then held that the objection to the bridge as an obstruction to the navigation of the river was removed; that although it might still be an obstruction in fact, it was not so in contemplation of law, and the decree of the court for the abatement of the bridge could not be enforced. 'There was no longer,' said the court, 'any interference with the enjoyment of the public right, inconsistent with the law, no more than there would be where the plaintiff himself had consented to it after the rendition of the decree.' For its interference with the public use of the stream no individual could complain, as the power which could control and regulate that use had made the structure creating the interference a lawful one. 18 How. 430. The case of Gilman v. Philadelphia, 3 Wall. 713, is much stronger than the Wheeling Bridge Case, and is conclusive against the pretensions of the plaintiff. It there appeared that a bridge was about to be built over the Schuylkill river at Chestnut street in the city of Philadelphia, under the authority of an act of the legislature of Pennsylvania, when a party owning valuable coal wharves just above Chestnut street filed a bill to prevent its erection, alleging, as in the present case, that it would be an unlawful obstruction to the navigation of the river, and a public nuisance, inflicting upon him special damage, and claiming that he was entitled to be protected by an injunction to restrain the progress of the work, and to a decree of abatement should it be completed. The river was tide-water, and navigable to the wharves of the plaintiff by vessels drawing from 18 to 20 feet of water; and, for years, commerce to them had been carried on in all kinds of vessels. The bridge was to be only 30 feet high and without draws, and, of course, would cut off all ascent above it of vessels carrying masts. The city justified its intended action under the act of the legislature, setting up that the bridge was a necessity for public convenience to large population residing on both sides of the stream. The court below dismissed the bill, and this court affirmed its decree, holding that as the river was wholly within her limits the state could authorize the construction of a bridge until congress should, by appropriate legislation, interfere and assume control of the subject. In giving its opinion the court observed that it should 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 over them may be greater than on the water; that it was for the municipal power to determine which should be preferred, and how far either should be made subservient to the other; and that this power could be exercised by the state until congress interfered and took control of the matter. All the considerations which governed the decision of that case operate with equal, if not greater, force in the present case. In that case different parts of a city separated by a navigable water were connected by a bridge; in this case two cities thus separated are united. In that case the obstruction was complete and permanent to all vessels having masts; in this case the obstruction does not exist except to a limited class of vessels having high masts, and to them it is little more than a temporary inconvenience. In that case there was no approval of the structure by congress, except such as may be inferred from its silence; in this case there is its direct authorization of the bridge after a careful consideration of its effect upon navigation by a commission of distinguished engineers. In that case the bridge was held to be a lawful structure against all private parties, the federal government alone having the right to object to the obstruction to the navigation of the river which it might cause and to remove it; in this case that government does not object, but approves and sanctions the structure; and the public benefit from it far outweighs any inconvenience arising from its interference with the navigation of the stream. The recent case of Escanaba Co. v. Chicago, 107 U. S. 678, [S. C. 2 SUP. CT. REP. 185,] follows the decision in Gilman v. Philadelphia, and is equally pointed and decisive. In the light of these cases (and others of the same purport might be cited) the claim of the plaintiff that the construction of the great work which was to connect, and which has since then connected, the cities of New York and Brooklyn should have been suspended, appears to be wholly without merit. The decree of the court below be affirmed; and it is so ordered.
107.US.418	I. The master of a vessel can neither sell nor hypothecate the cargo, except in case of urgent necessity; and he can only lawfully do what is directly or indirectly for its benefit, considering the situation in which it has been placed by the accidents of the voyage. 2. The necessity under which he acts is a question of fact, to be determined in each case by its circumstances; and upon his hypothecation of the cargo under his implied authority the lenders are chargeable with notice of the facts on which he appears to rely as his justification, and they must make inquiries and judge for themselves and at their own risk whether the owner, if present, would do or ought to d9 what, in his absence, the master is undertaking to do for him. Before there can be a recovery against the owner, it must be shown that the circumstances were such as to make it apparently proper for the master to do what he has done. To this extent the burden of proof is clearly on the lenders. 3. Where it appears that from the port where the vessel entered in distress the cargo could be forwarded by another vessel, and that it was for the interest of the shipper that it should be so forwarded, instead of being hypothecated to pay for the repairs of the vessel, and that they could not have been effected without an expense to him of very much more than it would cost to reclaim his property, pay all lawful charges on it, and forward it by another vessel, -Held, that the master had no authority to pledge the cargo without the consent of the shipper or the consignee. 4. Although the bottomry bond cannot be enforced against the cargo, the latter will not be held in that suit for any charges which the vessel may have thereon, where a claim for them is not made in the libel.	This is a suit instituted by the Bank of St. Thomas, as the holder of a bottomry bond, against the British brigantine Julia Blake, her cargo and freight. The decree of the district court condemned the vessel and freight, but acquitted the cargo and its claimants. No appeal was taken on behalf of the vessel and freight, but the libelant carried the case to the circuit court for a review of the decree as to the cargo. The bond was for $11,600, with 14 per cent. marine premium, and the net proceeds of the vessel and freight were about $3,500. On the hearing in the circuit court the libel was again dismissed as to the cargo, and from a decree to that effect this appeal was taken. The facts found by the circuit court, on which, in our opinion, the rights of the parties depend, may be stated as follows: The Julia Blake, a British vessel, owned by Peter Blake, of Nova Scotia, left Rio de Janeiro on or about the thirty-first of March, 1876, for New York, having on board a cargo consisting of 582 logs of rosewood. The bills of lading were three in number, and were drawn to the order of James Philip Mee, of Rio de Janeiro, the shipper, for 253, 139, and 190 logs, respectively. About 200 of the logs belonged to Mee, but the claimants had made advances on them to him. All the rest belonged to the claimants. The charter-party was dated March 16, 1876, and named Mee as the charterer. The stipulated freight was 220, of which 110 was paid in advance. Mee gave the master of the vessel on sailing a letter of instructions, directing him to proceed to New York and there consign his vessel and cargo to Winthrop, Cunningham & Sons, Philadelphia, the claimants, or their agents, and if compelled, by stress of weather or other accident, to put into St. Thomas, to consign the vessel to Lamb & Co. The voyage was prosecuted with safety until the third or fourth of May, on one of which days the rigging of the vessel parted, and her masts fell, the mainmast breaking at the saddle, about six feet above the deck, the foremast at the head. The fallen spars and wreck remained for some time along-side and thumping before they could be cleared away. This rendered it imprudent to prosecute the voyage and the master properly made for St. Thomas, as a port of distress, where he arrived on the twenty-seventh of May. On his arrival he applied to the acting British consul, who appointed a survey, consisting of the harbor-master, the principal shipwright at the port, and the master of a vessel. The survey properly recommended a discharge of the cargo, and it was necessary to strip the vessel of her copper to stop the leak. The cargo was discharged, and on the eighth of June a second survey ordered by the consul on the application of the master. A copy of the second survey, although in evidence, is not incorporated into the findings, nor are its contents stated, further than that the vessel was making as much water as at the time of the first survey, and that her metal had been much broken, and was torn away and ragged. When the master arrived at St. Thomas he went to several mercantile houses, and seemed to be seeking a proper party to whom to consign the vessel. He finally went to Lamb & Co. and engaged them to attend to the business of the vessel and the repairs. He did not show them his charter-party or letter of instructions, but told them he had lost those papers. Upon the arrival of the vessel at St. Thomas the master wrote his owner as follows: 'S. S. Beta, via Halifax. 'SAINT THOMAS, 27th May, 1876. 'Peter Blake, Esq., Parsboro, Nova Scotia—DEAR SIR: I regret to have to report that the brigantine Julia Blake, on her voyage from Rio de Janeiro, encountered heavy weather on the fourth instant, and for the safety of lives, vessel, and cargo I was compelled to cut away to righten the vessel, and to put into this port, as we were in a too-disabled condition to go north. A survey will be held on Monday, and I will supplement this letter by a telegram acquainting you what the surveyors recommend to be done in her present leaky and damaged state; it will likely be necessary to discharge to ascertain damage, and for new masts, etc. This mail closes at once, so I must defer giving you full particulars until next steamer. 'I remain, sir, your obedient servant, [Signed] 'ABRAM KNOWLTON.' On the twenty-ninth of May he sent the following telegram to the owner: 'Julia Blake, St. Thomas, dismasted, leaky; consigned Lamb; sending survey by mail.' Afterwards, Lamb & Co., on the thirteenth of June and the twenty-second of June, wrote the owner. Copies of their letters are as follows: 'French frigate Minerve, via Philadelphia. 'ST. THOMAS, 13 June, 1876. 'Peter Blake, Esq., Parsboro, Nova Scotia—SIR: We have to confirm Captain Knowlton's letter to you, dated twenty-seventh ult., acquainting you that the dismasted brig Julia Blake had put in here in a leaky and disabled condition. 'By surveyors' recommendation the vessel has been discharged, and is today on the marine repairing slip, for shipping and caulking, etc.; masts, sails, etc., are being made, and in the course of another month the Julia Blake will probably be ready for sea in a seaworthy state. 'Captain Knowlton dispatched you a telegram thus—— "Julia Blake, St. Thomas, dismasted, leaky; consigned Lamb; sending survey by mail,' —on the twenty-ninth ult., which no doubt reached you promptly and correctly. From his not receiving any reply from you, he concluded that you wished him to follow the customary routine with documents, etc. Meantime we hand, herein, certified copy of extended protest from the 'British consulate,' which may interest you. No doubt your letters will state in what manner accounts here are to be paid. 'We remain, sir, yours, faithfully, [Signed] 'LAMB & CO.' 'Alpha, via Halifax. 'ST. THOMAS, 22 June, 1876. 'Peter Blake, Esq., Parsboro, Nova Scotia SIR: We last wrote you on the thirteenth instant, via Philadelphia, with certified copy of extended protest per Julia Blake, which we trust has reached you safely. 'The S. S. Alpha arrived here to-day from Halifax without bringing us any letter from you, but Captain Knowlton tells us that he had a communication, and we, therefore, refer you to him or his advices for particulars, in connection with the repairing and refitting of the brigantine Julia Blake. 'We suppose that your next will furnish instructions regarding funds for expenses here; if you don't provide the needful, same will likely be raised by bottomry and respondentia loan, payable on arrival at New York. 'The Julia Blake should be ready for sea about fifteenth proximo, and 'We remain, sir, your obedient servants, [Signed] 'LAMB & CO.' To these letters of Lamb & Co., Blake, the owner, replied thus: 'PARSBORO, July 4, 1876. 'James Donald Lamb & Co., Esqrs., St. Thomas—DEAR SIR: I received your favor yesterday, as likewise of the thirteenth June, by way of Philadelphia, on the twenty-ninth day of June. My dear sirs, I did not know who to wright to until lately, as Mr. J. F. Whitney was righting and getting me to right to G. R. Smith, Saint Thomas. I don't know any person there. Please excuse me, as I could not answer your letter before this time. As for the Julia Blake and the funds for repairing, I think it will be all right. I hope it won't be too much. I think J. F. Whitney will see it all paid after she comes to N. York. Please give all the time you can, and I garantee you will have the pay, as I pay every one. My dear sirs, this is a thing I never had to do before. You or any person acting for the Julia Blake will be sure of your pay. The vessel is worth all expenses. I depend on you to do what is right and just. After a justment and everything, the whole of the repairs won't come out of me. I think I will be able to pay my share, as the Captain Noltin will tell you. I want you to make sure of yourself by bottomry until you see how this will gow in N. York. You will please let me know by return of steamer from St. Thomas all the particulars, as also the amount of repairs, and by so doing you will much oblige your humble servant, [Signed] 'PETER BLAKE.' On receipt of this Lamb & Co. wrote the following letter: 'Copy pr. S. S. Alpha. 'ST. THOMAS, 20 July, 1876. 'Peter Blake, Esq., Parsboro, N. S.—DEAR SIR: We have to acknowledge the receipt of your valued favor of fourth instant, the contents of which claim our best attention. 'The Julia Blake is progressing, with her repairs, and will soon be ready to take in cargo; we cannot, at present, give you any precise estimate of the expenses, as a good deal remains to be done yet, but Captain Knowlton is putting the vessel in first-rate order, having at the same time regard to every practicable economy. 'The case being one of 'general average,' the cargo will, of course, contribute its proper proportion towards expenses, and we think the documents which Captain Knowlton will take with him will render the adjustment speedy and satisfactory to all the interests and parties concerned. 'We are, dear sir, yours, faithfully, [Signed] 'LAMB & CO.' Under date of June 1, 1876, Lamb & Co. wrote the shipper of the cargo at Rio de Janeiro as follows: 'Star Ball steamer from Porto Rico. 'RIO JANEIRO. ST. THOMAS, 1st June, 1876. 'DEAR SIR: We have to advise that the brigantine Julia Blake put in here on the twenty-seventh ult., dismasted and leaky. A survey has been held, and for effecting repairs, etc., the cargo is being discharged. 'Captain Knowlton tells us that he has cabled the 'casualty' to the United States. As the cargo is consigned 'to order,' we have been unable to acquaint the New York consignees of the misfortune. 'We remain, yours, faithfully, [Signed] 'LAMB & CO.' During all the time the vessel was at St. Thomas there was facility for telegraphic communication with New York, and until the twenty-first of July with Rio de Janeiro, by way of New York, London, Lisbon, and Perambuco. On this last date a break occurred in the cable between Bahia and Rio de Janeiro, but the Western Union Telegraph Company continued to transmit telegrams to Bahia, from whence they were forwarded to Rio de Janeiro, the time required for transmission from New York to Rio de Janeiro being about five days. These lines of telegraph were often employed by merchants and men of business at St. Thomas, and that from St. Thomas to New York was known to and used by the claimants. From the findings it does not appear that the telegraph was used by any of the parties after the telegram was sent the owner of the vessel on the twenty-ninth of May, and no other letters appear to have passed between the parties until after the vessel had completed her repairs and sailed with her cargo for New York. Immediately after the second survey was completed the repairs on the vessel were commenced. The bills for the repairs and supplies were paid by Lamb & Co., after the master had certified to their correctness. The repairs were completed on the twenty-second of July, and thereupon the master advertised for a loan on bottomry and respondentia of ship, freight, and cargo, to the amount of $7,500, or thereabouts. The Bank of St. Thomas alone made a proposal, and for the whole amount, at a maritime interest of 14 per cent. Lamb & Co. made no inquiries as to the necessity of the repairs and supplies, but relied wholly on the statement of the master. The only inquiry made by the bank was as to the sufficiency of the security and the regularity of the papers in their form of execution. The discharge of the cargo was necessary in order to stop the leaks and make the vessel seaworthy. The repairs and supplies furnished, as well as the remetaling, were necessary to put the vessel in a seaworthy condition for a voyage to New York. When the loan came to be closed the master told Lamb & Co. that a large amount of expenses had been incurred of which they had no previous information, and that the amount required to defray the expenses and pay their commissions and charges was $11,600. This amount the bank advanced and took the bond. The vessel left St. Thomas on the fifth of August. On her arrival in New York the payment of the bond was refused, and she, with her freight and cargo, was libeled. The cargo was not perishable and would not have been injured by being stored under cover at St. Thomas for three or four months, and was worth in New York about $18,000. St. Thomas is a central port, where vessels go seeking business, and to which parties requiring vessels also go. Vessels for the shipment of merchandise are always available there. The cargo could have been forwarded from there by vessels other than the Julia Blake for from $1,000 to $1,500, and it was for the interest of the owners that it should be so forwarded, rather than hypothecated to pay for repairs to the Julia Blake. On the twenty-eighth of September, after the vessel had sailed for New York, Lamb & Co. wrote the shipper of the cargo as follows: 'Per S. S. Nile, via Southampton. 'RIO DE JANEIRO, ST. THOMAS, 28th September, 1876. 'DEAR SIR: Your favor of the thirteenth July last reached us recently via Porto Rico, and only after the Julia Blake had sailed from this port. The letter of instructions which you mention having given to Captain Knowlton on sailing from Rio has never been laid before us, nor did he produce the charter-party, although we repeatedly asked for it; he alleged that it had been mislaid or lost at the time of the disaster at sea, and on being questioned denied having any instructions from you as to the consignment of vessel in case of average. The bills of lading being 'to order,' left us no clue as to the consignees of cargo. The casualty was, however, at once cabled to the New York Board of Underwriters. 'While we regret that you should have felt any doubt as to our compliance with your wishes, it will now be clear to you how blameless we are in the matter. 'Whether Captain Knowlton purposely withheld information from us, or if he actually did lose the documents referred to, remains at present open for conjecture only; but the control intended to have been placed with us remained, in part at least, in hands of the captain, as master of the vessel. 'We would suggest that you advise us by mail of the dispatch of all vessels conveying instructions from you to our firm, in the event of their putting into this port in distress would thus, if necessary, be able at once to take up a position with the master, and the protection of your interests at out hands can thus not be disputed or ignored. 'The adoption of such a course on your part is, we think, more advisable under present circumstantial means of mail communication between Rio and St. Thomas. 'We are, dear sir, yours, very truly, 'LAMB & CO.' The letter from the shipper referred to is not included in the findings, and it nowhere appears that it was in evidence. The case depends entirely on the authority of the master of the vessel to give the bottomry bond on the cargo. It is now the settled law of the English courts that a master 'cannot bottomry a ship without communication with his owner, if communication be practicable, and, a fortiori, cannot hypothecate the cargo without communicating with the owner of it, if communication with such owner be practicable.' The Cassa Marittima, 2 App. Cas. 157. This doctrine was first announced in The Bonaparte, 8 Moore, P. C. 459, decided in 1853, and has been steadily adhered to since; not, however, without decided opposition by Dr. Lushington. The Hamburg, 2 Moore P. C. (N. S.) 319; The Cargo ex Sultan, 1 Swab. 511. Whether the rule, to the extent it has been carried in England, is in accordance with the general maritime law, as understood in this country and the maritime nations of Europe, other than Great Britain, or whether, since the Julia Blake was a British vessel, the authority of her master in a Danish port is to be determined by the English law, instead of the general maritime law, or the law of Denmark, are questions we deem it unnecessary to consider, for, in our opinion, even under the most liberal construction of any recognized rule which can be invoked for the authority of the master over the cargo, this bond cannot be sustained. The master can neither sell nor hypothecate the cargo, except in case of urgent necessity, and his authority for that purpose is no more than may reasonably be implied from the circumstances in which he is placed. He acts for the owner of the cargo because there is a necessity for some one to do so, and, like every agent whose authority arises by implication of law, he can only do what the owner, if present, ought to do. Necessity develops his authority and limits his powers. What he does must be directly or indirectly for the benefit of the cargo, considering the situation in which it has been placed by the accidents of the voyage. As was said by Sir William SCOTT, in The Gratitudine, 3 C. Rob. 261, by which the power of the master, under proper circumstances, to hypothecate the cargo to pay the expenses of repairs on the ship was incontrovertibly established: 'In all cases it is the prospect of the benefit to the proprietor that is at the foundation of the authority of the master. It is, therefore, true that if the repairs of the ship produce no benefit or prospect of benefit to the cargo, the master cannot bind the cargo for such repairs; but it appears to me that the fallacy of the argument that the master cannot bind the cargo for the repairs of the ship, lies in supposing that whatever is done for the repairs of the ship is in no degree and under no circumstances done for the benefit, or with the prospect of benefit, to the cargo; whereas, the fact is that though the prospect of benefit may be more direct and more immediate to the ship, it may still be for the preservation and conveyance of the cargo, and is justly to be considered as done for the common benefit of both ship and cargo.' To the same effect is what was said by Chief Baron POLLOCK, in Duncan v. Benson, 1 Exch. 557: 'But this agency for the freighter is confined to cases affecting his interest, and where the sale or pledge is directly or indirectly for his benefit. It is directly beneficial where goods are damaged by perils of the sea, and sold; it is indirectly so where there is damage to the ship, and the repairs become necessary for the benefit of the whole adventure.' Sir Robert PHILLIMORE was even more explicit in the case of The Onward, L. R. 4 Adm. & Ecc. 57, where he used this language: 'The next consequence from the doctrine of agency is that the master must sustain, to the best of his power, the interest of the absent owner. This is a principle of general maritime law, and not * * * of English law only. Boulay Paty observes, * * * he must do that which there is fair reason to suppose the owner, if present, would do. * * * The master is to remember the foundation of his authority to give a bottomry bond on cargo is the prospect to benefit, direct or indirect, to the proprietor of it. This principle limits the authority of the master in this matter.' So, in this country, Mr. Justice WASHINGTON said, in Ross v. The Active, 2 Wash. C. C. 237: 'But at all events the necessity must be such as to connect the act with the success of the voyage, and not for the exclusive interest of the ship-owner.' Undoubtedly, in all such cases, much is left to the master's discretion, but, to use the language of Mr. Justice STORY in The Packet, 3 Mason, 259, 'he must exercise it conscientiously for the general interest.' This court said, in New England Ins. Co. v. The Sarah Ann, 13 Pet. 400, speaking of the analogous authority of the master to sell the ship: 'All will agree that the master must act in good faith, exercise his best discretion for the benefit of all concerned, and that it can only be done upon the compulsion of necessity, to be determined in each case by the actual and impending peril to which the vessel is exposed.' And in The Amelie, 6 Wall. 27, it was said: 'Ann this necessity is a question of fact, to be determined in each case by the circumstances in which the master is placed and the perils to which the property is exposed. If the master can within a reasonable time consult the owners, he is required to do it, because they should have an opportunity to decide whether, in their judgment, a sale is necessary.' When the master is dealing with the cargo for the benefit of the voyage, he 'must endeavor to hold the balance evenly between his two principals; he must not sacrifice the ship to the cargo or the cargo to the ship.' The Onward, supra, 58. It is equally well settled that a lender, upon the hypothecation of the cargo by a master of the vessel under his implied authority, is chargeable with notice of the facts on which the master appears to rely as a justification of what he is doing. Such a lender is presumed to know that the power of the master is to be determined by the necessities of the case in their legal operation on the owner of the cargo. As necessity creates the agency, and that only can be authorized which, under the circumstances, is reasonable and just, he must make his own inquiries and judge for himself, and at his own risk, whether, if the owner were present, he would do or ought to do that, or something equivalent, which the master is undertaking to do for him in his absence. A lender cannot shut his eyes to existing facts as they appear, or by reasonable inquiry could be made to appear, and treat with the master as a general agent, having authority to do, not only what the owner ought to do, but what he might do if he chose. Before there can be a recovery against the owner it must be shown that the circumstances were such as to make it apparently proper for the master to do what he has done. To this extent, the burden of proof is clearly on the lender. The Aurora, 1 Wheat. 102; Thomas v. Osborn, 19 How. 30; The Amelie, 6 Wall. 27; The Grapeshot, 9 Wall. 141; The Lulu, 10 Wall. 203. In these cases the rule was applied to the hypothecation of the ship by the master, where less strictness will ordinarily be required than in the hypothecation of the cargo, because the master is the appointed agent of the owner of the ship, but the involuntary agent of the owner of the cargo. It remains only to apply these well-settled rules to the facts of the present case. When the loan was advertised for and put on the market the cargo was out of the vessel and in store. It was not perishable, and could be sent forward to its place of destination in another vessel, without any considerable delay, at a cost of from $1,000 to $1,500. The vessel had been two months in port. Her cargo was consigned to New York. The bills of lading were drawn to the order of the shipper, but accompanying them was a letter to the master instructing him to whom to report at the end of his voyage. If this letter had been lost, as the master claimed it was, the fact that it had been given was not forgotten by him, for when he first went to Lamb & Co. he told them of its loss. From that time for nearly two months, and until the day before the loan was advertised for, telegraphic communication between St. Thomas and Rio de Janeiro was practicable and reasonably direct. The necessity for unloading the cargo, and making extensive and costly repairs on the vessel to fit her for the further prosecution of the voyage, was known as soon as the surveys were completed, and yet neither the master nor Lamb & Co. made any attempt to ascertain from the shipper, by telegraph, his wishes about the disposition to be made of the cargo under the circumstances, or even to get information as to the names of the consignees in New York, with whom there could be communication, both by mail and telegraph. Lamb & Co. did, indeed, on the first of June, write the shipper by mail that the vessel had put into St. Thomas dismasted and leaky; that a survey had been held, and that, for affecting repairs, the cargo was being discharged; but even this meager information did not probably reach its destination until about the thirteenth of July, only a few days before the loan was advertised for. Although Lamb & Co. were engaged by the master to attend to the business of the vessel and her repairs, they made no inquiry as to the propriety of what was done, but relied entirely on the statements of the master, and apparently allowed him to do what he pleased, for it was not until a loan of $7,500 had been applied for and taken that they knew it would require $11,600 'to defray expenses and their charges and commissions,' and then only when it was told them by the master. The findings show that when the vessel had been out from Rio de Janeiro a little more then 30 days, 'her rigging parted and her masts fell, the mainmast breaking at the saddle and her foremast at the head.' On her arrival at St. Thomas her cargo had to be discharged to stop the leaks; her metal was 'much broken and torn away and ragged,' and had to be replaced with new to make her seaworthy for a voyage to New York, and although she sold when she got to New York for but $4,500, leaving only $3,500 produced from the vessel and freight to apply on the loan, the aggregate of her expenditures in St. Thomas was $11,600. From these facts it is, to our minds, apparent that when the vessel arrived at St. Thomas she ought not to have been repaired at the risk of expense to the owner of the cargo without his consent, and that this could easily have been ascertained by an inquiry into the facts. She came in 'dismasted and leaky' 'for a general equipment and refit,' with a cargo substantially imperishable, which might be forwarded in another vessel at comparatively small expense, and it must have been easy to see that to repair the vessel at the risk of the owner of the cargo would be to place his interests in jeopardy without any urgent necessity on his account. No master, who 'held the balance evenly between his two principals,' could have believed himself justified, under the circumstances, in hypothecating the cargo for any such purpose, without notice to the owner. But when the repairs were completed, and the hypothecation was tendered, the impropriety of what the master proposed to do was even more apparent. Then the offer was to pledge vessel, freight, and cargo for $13,324, when the most casual observer must have seen that the vessel and freight would actually secure only a comparatively small part of the amount required. Of all this the lender, who made no inquiries whatever, is chargeable in law with notice. Had he inquired and been deceived through no fault of his own, the case might have been different. But having failed to inquire at all, he ispresumed to know all that the master knew. His case presents itself, therefore, as that of a lender upon the hypothecation of a cargo by the master, without communication with the consignee or owner, to pay the expenses of permanent repairs to the vessel, when it was manifest that the owner of the cargo could not be benefited by what was done to anything like the amount with which he was to be charged. It is contended, however, that the owner of the cargo has no right to demand his property at an intermediate port unless the voyage has been actually abandoned or the necessary repairs on the vessel cannot be effected. The cargo owner is not bound to help the vessel through with her voyage under all circumstances. It is the duty of the vessel owner, and of the master as his appointed agent, to do all that in good faith ought to be done to carry the cargo to its place of destination, and for that purpose the cargo owner should contribute to the expense as far as his interests may apparently require, but he is under no obligation to sacrifice his cargo, or to allow it to be sacrificed, for the benefit of the vessel alone. He ought to do what good faith towards the vessel demands, but need not do more. If he would lose no more by helping the vessel in her distress than he would by taking his property and disposing of it in some other way, he should, if the vessel owner or the master requires it, furnish the help or allow the cargo to be used for that purpose. To that extent he is bound to the vessel in her distress, but no further. When, therefore, a cargo owner finds a vessel, with his cargo on board, at a port of refuge needing repairs which cannot be effected without a cost to him of more than he would lose by taking his property at that place and paying the vessel all her lawful charges against him, we do not doubt that he may pay the charges and reclaim the property. Otherwise he would be compelled to submit to a sacrifice of his own interests for the benefit of others, and that the law does not require. What charges must be paid will depend on the circumstances of the case. Sometimes they may include full freight, expenses at the port of refuge, general average charges, and possibly more and sometimes less; but upon full payment of such as are in law demandable, the cargo must be surrendered. In the present case it is not only found as a fact that it was for the interest of the shipper that his property should be forwarded by some other vessel rather than that it should be hypothecated to pay for the repairs, but everything else in the findings points unmistakably to the conclusion that such repairs could not have been effected without an expense to him of very much more than it would cost to reclaim his property, pay all lawful charges upon it, and send it forward by some other conveyance. Under such circumstances, we have no hesitation in saying that the master had no authority to pledge the cargo as he did, without the consent of the shipper or consignees. The notice given the shipper was entirely insufficient, and furnished no such information as would require him to act otherwise than he appears to have done. He did not get the letter until nearly six weeks after it was written, and from its contents he was justified in supposing that before his property was encumbered to any considerable amount he would be notified by telegraph. Certainly, so long as the mail only was used to communicate with him, he need not have supposed it was necessary at the end of six weeks to employ the telegraph for a response to such information as he got. It must have been apparent from the outset, at St. Thomas, that it would be necessary to hypothecate the cargo to pay for the repairs if they were made, and there was no excuse for not communicating that fact either to the shipper or the consignees before it was too late for them to object or provide against it. All this the lender of the money could have known if inquiry had been made, and there was abundance of evidence in all directions to show that no prudent cargo owner would voluntarily do what the master was doing for him. Clearly, therefore, the hypothecation of the cargo was unauthorized and void. It is insisted, however, that if the bottomry bond cannot be enforced, the cargo may be held in this suit for such charges as it was liable for to the vessel. No such claim is made in the libel. Full freight has been paid, and there is nothing in the case, as it comes to us, to show that anything more was demandable. If the vessel was unseaworthy when she left Rio de Janeiro, all the extraordinary expenses she incurred on the voyage were probably through her own fault, and not chargeable on the cargo. At any rate, there is nothing in the record as it now stands to make it proper for us to remand the cause for further proceedings under this new claim. Decree affirmed.
109.US.672	1. In.1791, one Young, then ownbig a tract of land containing about 400 acres on the Potomac, conveyed the same in fee simple with all its ap'purtenances to two trustees (who were also trustees with similar trusts, for other owners of land), as a site for the City of Washington. The trust provided that the lands laid out in streets, squares, etc., should be for the use of the United States forever, and that a fair and equal division of the remainder should be -made. In 1794 the plan of the city was adopted and promulgated. On this plan a public street called Water street,was represented as laid out on the margin of the river over the tract so conveyed by Young; but this street was not in fact constructed until after the close of the late civil war. 'In 1796 the trustees conveyed the tract so deeded to them (including Young's), "in fee simple subject to trusts yet remaining," to commissioners appointed to receive title, under the act of July 16th, 1790, entitled, "An Act for establishing the temporary and permanent seat of the government of the United States." 1 Stat. 180. In 1797 the commissioners, in execution of the trust, and in pursuance of a statute of the State of Maryland, recorded certificates in their record book, which stated that one tract, dei6ned by metes and bounds, had been allotted to Young, and that another tract, in like manner defined, had been allotted to the United States. Each of these tracts was on the northerly side of Water street, and was described as bounded on that street. The title to both became subsequently vested in the plaintiffs : Held, That these transactions were equivalent to a conveyance by Young to the United States in fee simple of all his lands; and of a conveyance back by the United States, of the first tract described by metes and bounds, leaving in the United States the title in fee simple to the other ti-act and to the strip known as Water street. Van N7ress v. Th.e ayor, &c., of Washington, 4 Pet. 282, approved and followed. 2. After the execution of the commissioners' certificate in 1797, allotting to Young a tract of land on the north side of Water street and to the United States another tract, also on the north side of that street, no wharfage rights remained connected with the use and enjoyment of those lots, and not being thus connected with them, such right was not annexed as an incident to them, so as to become appurtenant to them. 8. The agreement of March 28th, 1785, between Virginia and Maryland, provided that citizens of each should have full property in the shores of the Potomac and the privilege of constructing wharves and improvements. The Maryland act of December 19th, 1791, authorized the commissioners appointed under the act of July 16th, 1790, 1 Stat. 130, to license the building of wharves on the Potomac: .feld, That the United States, as owners in fee of Water street in the city of Washington, were in the enjoyment of all the rights which were attached to that property by this compact and by this legislation, or which belonged or appertained to it by virtue of general principles of law relating to riparian rights. The authorities in this court, and other federal courts, and in State courts and the courts of Great Britain, on that subject examined. 4. The act of the legislature of )Iaryland of December 28th, 1793, under which the commissioners entered in their record book the certificate to Young and to the United States, provided that they should " be sufficient and effectual to vest the legal estate in the purchasers, without any deed or formal conveyance :" Held, That parol evidence is only admissible to contradict, vary, or explain them, when it would have been admissible if they had been formal conveyances. 5. Chesapeake & Ohio Canal Co. v. Union Bank of Georgetouw, 5 Cranch C. C. 509, cannot be regarded as the law of the District of Columbia on the point involved in this case. In so far as in conflict with it, the court in that case did not follow Van 'Vessv . .3fayor, &c., of Washinglon,.4 Pet. 232, or Zennedy v. Washington, 3 Cranch 0. C. 595.	These two cases were heard together in the court below and in this court. They involve the same questions and depend upon facts substantially the same, appearing in a single record. The claim of the appellants (who were plaintiffs below) is that, being owners and in possession, in the first case, of square No. 472, and, in the second, of l t No. 13, in square No. 504, on the plan of the city of Washington, they are entitled to the exclusive right to make and use wharves and other similar improvements in the Potomac river opposite or in front of these lots, which are separated from it by Water street; and the object of the bills is to restrain the defendants, by a perpetual injunction, from intruding upon and disturbing the enjoyment of their right. This claim is denied by the defendants, who assert an adverse right under public authorities acting in the name of the United States. This issue was determined by the court below in favor of the defendants by decrees dismissing the bills, which decrees these appeals bring before us for review. The plaintiffs derive title to the lots mentioned by mesne conveyances from Notley Young, who was the original proprietor of a tract of about 400 acres, known at the Dudington pastures, lying upon the Potomac river, and which became part of the site of the city of Washington, extending along the river from Tiber creek, corresponding with the foot of Fourteenth street at the Long bridge, to the grounds of the United States arsenal. The seventh clause of the compact between Virginia and Maryland, of March 28, 1785, declared that 'the citizens of each state respectively shall have full property in the shores of the Potowmack river adjoining their lands, with all emoluments and advantages thereunto belonging, and the privilege of making and carrying out wharves and other improvements, so as not to obstruct or injure the navigation of the river.' The nature and extent of this compact were considered by this court in Georgetown v. Alexandria Canal Co. 12 Pet. 91, where it was declared to be a compact between the states as such, to which the citizens of neither were parties, and, being subject to the will of the states, as to any changes in its stipulations, it was equally under the control of congress after the cession. It was provided, however, by the act of July 16, 1790, (1 St. 130,) accepting the District of Columbia as the seat of government of the United States, 'that the operation of the laws of the state within such district shall not be affected by this acceptance until the time fixed for the removal of the government thereto, and until congress shall otherwise by law provide.' It was therefore provided by the general assembly of Maryland, by an act of December 19, 1791, § 12, that the commissioners of the district, appointed by the president under the act of congress of July 16, 1790, 'shall, from time to time, until congress shall exercise the jurisdiction and government within the said territory, have power to license the building of wharves in the waters of the Potomac and the eastern branch, adjoining the said city, of the materials, in the manner, and of the extent they may judge durable, convenient, and agreeing with general order. But no license shall be granted to one to build a wharf before the land of another, nor shall any wharf by built in the said waters without license as aforesaid; and if any wharf shall be built without such license, or different therefrom, the same is hereby declared a common nuisance.' Davis, 64. In pursuance of this authority, the commissioners adopted the following regulation on the subject, dated July 20, 1795: 'That all the proprietors of water lots are permitted to wharf and build as far out into the river Potomac and the eastern branch as they think convenient and proper, not injuring or interrupting navigation, leaving a space, wherever the general plan of the streets in the city requires it, of equal breadth with those streets, which, if made by an individual holding the adjacent property, shall be subject to his separate occupation and use until the public shall reimburse the expense of making such street, and where no street or streets intersect said wharf, to leave a space of sixty feet for a street at the termination of every three hundred feet of made ground; the buildings on said wharv § or made ground to be subject to the general regulations for buildings in the city of Washington, as declared by the president; wharves to be built of such materials as the proprietors may elect.' Pages 408, 409, Proceed. Com'rs, 1791 to 1795. This regulation was submitted to President Washington, who directed it to be published by letter dated at Mt. Vernon, September 18, 1795. In the mean time, Notley Young and the other proprietors, whose proposal had been accepted, by distinct conveyances, but in like form, had conveyed to Thomas Beall and John M. Gantt, as trustees, the several tracts of land which were to constitute the territory of the city of Washington. That of Notley Young was dated June 29, 1791, and conveyed, in fee-simple, 'all the lands of him, the said Notley Young,' therein described, to have and to hold, 'with their appurtenances,' in consideration 'of the uses and trusts' therein mentioned, and 'to and for the special trusts following, and no other:' 'That all the lands hereby bargained and sold, or such part thereof as may be thought necessary or proper to be laid out, together with other lands within the said limits, for a federal city, with such streets, squares, parcels, and lots as the president of the United States for the time being shall approve; and that the said Thomas Beall of George and John M. Gantt, or the survivor of them, or the heirs of such survivor, shall convey to the commissioners for the time being, appointed by virtue of the act of Congress entitled 'An act for establishing the temporary and permanent seat of the government of the United States,' and their successors, for the use of the United States forever, all the said streets and such of the said squares, parcels, and lots as the president shall deem proper, for the use of the United States; and that, as to the residue of said lots into which the said lands hereby bargained and sold shall have been laid off and divided, that a fair and equal division of them shall be made; and if no other mode of division shall be agreed on, by consent of the said Notley Young and the commissioners for the time being, then such residue of the said lots shall be divided, every other lot alternate to the said Notley Young; and it shall in that event be determined by lot whether the said Notley Young shall begin with the lot of the least number laid out on the said lands or the following number; and all the said lots which may in any manner be divided or assigned to the said Notley Young shall thereupon, together with any part of the said bargained and sold lands, if any, which shall not have been laid out on the said city, be conveyed by the said Thomas Beall of George and John M. Gantt, or the survivor of them, or the heirs of such survivor, to him, the said Notley Young, his heirs and assigns,' etc. It was also stipulated therein that the said Beall and Gantt should, at the request of the president of the United States, convey all or any of said lands which should not then have been conveyed in execution of the trusts aforesaid, to such persons as he should appoint, in feesimple, subject to the trusts remaining to be executed, and to the end that the same might be perfected. Accordingly, on October 3, 1796, the president requested Beall and Gantt to convey all the unconveyed residue of the land granted by Notley Young to Scott, Thornton, and White, then commissioners, appointed under the act of July 16, 1790, 'in fee-simple, subject to the trusts yet remaining to be executed;' and on November 30, 1976, Beall and Gantt accordingly conveyed by deed in fee-simple to the commissioners last named. In the mean time, however, the plan of the city had been adopted and promulgated, on maps of which were laid out the squares, lots, public grounds, and streets; and on October 18, 1794, a division had been made between Notley Young and the commissioners, in execution of the trusts of the deed from him to Beall and Gantt, of which square No. 504 fell to the public and square No. 472 to Notley Young. o deed was made by Beall and Gantt to Notley Young for square No. 472, but on January 13, 1797, the commissioners recorded in their book, which by law they were authorized to keep for that purpose, their certificate that they and Young had agreed 'that the whole of the same square shall remain to the said Notley Young agreeably to the deed of trust concerning lands in the said city,' and attached thereto a plat of the square, its boundaries as follows: 'Bounded on the north by L street, four hundred and seventy-nine feet four inches; the south by M street south, three hundred and fifty-seven feet three inches; the east by Sixth street west, two hundred and eighty-nine feet ten inches; the southwest by Water street, three hundred and fourteen feet three inches,'—as perreturn dated December 24, 1793. A similar entry and record were made in respect to square 504, the plat of which shows a subdivision of the entire square into lots, of which five, lot No. 13 being one of them, front on Water street, running back to an alley which separates them from all the other lots in the square. The legal title to this, and other squares allotted to the public, passed to the commissioners of the district by the deed from Beall and Gantt; and the legal estate to square 472 and the others allotted to Notley Young, vested in him in fee-simple, by virtue of the certificates recorded in the commissioners' book, under a law of Maryland, of December 28, 1793, (Burch, Dig. 224,) which gave effect to it, 'according to the import of such certificates.' A similar certificate was made and recorded October 18, 1794, to the effect that James Greenleaf had become the purchaser of 857 lots, for which he had fully paid, the legal title to which in fee-simple had vested in him, and among them is enumerated square 504. The plaintiff's claim lot 13 in that square under Greenleaf's title. It has been observed that both squares, No. 472 and No. 504, are bounded on the south-west by Water street. This street was designated, on the adopted plan of the city, as occupying the whole line of the river front, and separating the line of the squares from the river for the entire distance from Fourteenth street to the arsenal. It is alleged in the bill in respect to this street that there was traced on the map of the city 'but a single line denoting its general course and direction; that the dimensions of said Water street, until the adoption, on the twenty-second day of February, 1839, of the certain plan of one William Elliott, as hereinafter more particularly mentioned, were never defined by law; and that the said Water street was never, in fact, laid out and made in the said city until some time after the close of the recent civil war; that before the commencement of said civil war one high bluff or cliff extended along the bank of said river, in said city of Washington, from Sixth street west to Fourteenth street west; that to the edge thereof the said bluff or cliff, between the points aforesaid, was in the actual use and enjoyment of the owners of the land which it bounded towards the said river; that public travel between the two streets last above mentioned, along the said river, could only be accomplished by passing over a sandy beach, and then only when the tide was low; and that what is now the path of Water street, between the two streets aforesaid, was and has been made and fashioned by cutting down the said cliff or bluff and filling in the said stream adjacent thereto.' These allegations, in substance, are admitted in the answer to be ture, with the qualification that the width of the street was left undefined because it constituted the whole space between the line of the squares and the river, whatever that might be determined to be from time to time, but that the commissioners, on March 22, 1796, made an order directing it to be laid out 80 feet in width, from square 1079 to square east of square 1025, and to 'run out the squares next to the water and pre are them for division,' and that it was so designated on maps of the city in 1803. If not, the inference is all the stronger that the whole space south of the line of the lots was intended to be the property and for the use of the public. Barclay v. Howell's Lessees, 6 Pet. 504. In Rowan's Ex'rs v. Portland, 8 B. Mon. 232-239, that inference was declared to be the legal result of such a state of facts. It is quite certain that such a space was designated on the official map of the city as originally adopted, the division and sale of the squares and lots being made in reference to it. What the legal effect of that fact is we shall hereafter inquire, and while we do not consider it to be qualified by the circumstances set forth as to the actual history of the street as made and used, they perhaps sufficiently account for the doubt and confusion in which the questions of right brought to issue in this litigation seem, for so long a period, to have been involved. The transaction between Notley Young and the public authorities, as evidenced by the documents and circumstances thus far set forth, was equivalent in its result to a conveyance by him to the United States in fee-simple of all his land described, with its appurtenances, and a conveyance back by the United States to him of square No. 472, and to Greenleaf of square No. 504, bounded and described as above set forth, leaving in the United States an estate in fee-simple, absolute for all purposes, in the strip of land designated as Water street, intervening between the line of the squares as laid out and the Potomac river. The very point as to the nature of this title was decided in the case of Van Ness v. The Mayor, etc., of Washington, 4 Pet. 232. It was there said by Mr. Justice STORY, delivering the opinion of the court, (page 285:) 'Here we have a solemn instrument embodying the final intentions and agreements of the parties, without any allegations of mistake, and we are to construe that instrument according to the legal import of its terms. Now, upon such legal import, there do not seem grounds for any reasonable doubt. The streets and public squares are declared to be conveyed 'for the use of the United States forever.' These are the very words which by law are required to vest an absolute unconditional fee-simple in the United States. They are the appropriate terms of art, if we may so say, to express an unlimited use in the government. If the government were to purchase a lot of land for any general purpose, they are the very words which the conveyance would adopt in order to grant an unlimited fee to the use of the government. There are no other words or references in the instrument which control in any manner the natural meaning of them. There are no objects avowed on the face of it which imply any limitation. How, then, can the court defeat the legal meaning and resort to a conjectural intent?' It was accordingly decided in that case that the ownership of the land over which the streets in the city of Washington had been laid out on the original plan was vested by the deeds of the proprietors in the United States so completely and unconditionally that congress might lawfully dispose of it to private persons, or otherwise convert it to any use whatever. It was also decided in that case that the legal effect of the final instrument which defined and declared the intentions and rights of the parties, could not be modified or controlled by proof any of preliminary negotiations or agreement. 'The general rule of law is,' said the court, 'that all preliminary negotiations and agreements are to be deemed merged in the final settled instruments executed by the parties, unless a clear mistake be established.' This applies not only to the formal deeds from Notley Young to Beall and Gantt, and from them to the commissioners, but also to the certificates and plats made and recorded by the latter, which, under the Maryland act of December 28, 1793, (Burch, Dig. 224,) ' hall be sufficient and effectual to vest the legal estate in the purchasers, their heirs and assigns, according to the import of such certificates, without any deed or formal conveyance.' It is under and according to these certificates, granted to Notley Young and Greenleaf that the plaintiffs derive their title; and parol evidence to contradict, vary, or explain them is no more to be admitted than if they were formal conveyances. Williams v. Ingell, 21 Pick. 288. For this reason we reject, as without legal value, the book called 'Division Book No. 1,' referred to as showing a list of the squares and lots assigned to Notley Young in the division, and containing an entry as to square 472 as having a water front of 314 feet 3 inches. It is not well authenticated as a contemporary and original book, and is not one which it was the official duty of the commissioners to keep. However convenient, therefore, it may be as a book of reference for examiners of title in facilitating searches, it has not the quality of a public record. What effect upon the riparian rights of Notley Young would have resulted from the creation of a perpetual easement for a public way over Water street by a grant to the United States to that use alone, the title and right of possession in the soil for all other purposes remaining in the original proprietor, it is unnecessary to discuss. The decisive circumstance in the present case is that the United States became the riparian proprietor, and succeeded to all the riparian rights of Notley Young, by becoming the owner in fee-simple absolute of the strip of land that adjoined the river and intervened between it, and what remained to the original proprietor, Notley Young, after that conveyance; and the successors to his title had no other or greater rights in Water street, or the land on which it was laid out and eventually made, than any other individual members of the public. While it remained a street it was subject to their use as a highway merely, over which to pass and repass, and without the consent of the United States, as proprietor, was subject to no private use whatever. The right of wharfage remained appurtenant to it, because, as land adjacent to the river that right was annexed to it by law and could be exercised on it by the proprietor, but was severed by the severance of the title from the remainder of the original tract, to the whole of which it had formerly pertained. In reference to the squares and lots lying north of the street, it may be said of the wharfage right claimed, as was said in Linthicum v. Ray, 9 Wall. 241: 'It is in no way connected with the enjoyment or use of the lot, and a right not thus connected cannot be annexed as an incident to land so as to become appurtenant to it.' A riparian proprietor, in the language of Mr. Justice MILLER, in Yates v. Milwaukee, 10 Wall. 497-504, is one 'whose land is bounded by a navigable stream;' and among the rights he is entitled to as such, are 'access to the navigable part of the river from the front of his lot, the right to make a landing, wharf, or pier for his own use or for the use of the public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public, whatever those may be.' Weber v. Harbor Com'rs, 18 Wall. 57. In Massachusetts, where it is held that, by virtue of the ordinance of 1647, if lands be described as bounded by the sea, the grantee will hold the lands to low-water mark, so that he does not hold more than 100 rods below high-water mark, (Storer v. Freeman, 6 Mass. 435; Com. v. Charlestown, 1 Pick. 180;) yet it is also held that where an ancient location or grant by the proprietors of a township bounded the land granted by a way, which way adjoined the sea shore, the ordinance did not pass the flats on the other side of the way to the grantee. Codman v. Winslow, 10 Mass. 146. And in Maine it was decided that a grantee, bounded by high-water mark, is not a riparian proprietor, nor within the ordinance. Lapish v. Bangor, 8 Greenl. 85. In New Jersey it is spoken of as 'the right of an owner of lands upon tide-waters to maintain his adjacency to it and to profit by this advantage,' (Stevenson v. Paterson, etc., R. Co. 34 N. J. Law, 532-556,) and as a right 'in the riparian owner to preserve and improve the connection of his property with the navigable water.' Keyport Case, 3 C. E. Green, 516. The riparian right 'is the result of that full dominion which every one has over his own land, by which he is authorized to keep all others from coming upon it except upon his his own terms.' Rowan's Ex'rs v. Portland, 8 B. Mon. 232. It is 'a form of enjoyment of the land and of the river in connection with the land.' Lord CAIRNS in Lyon v. Fishmonger's Co. 1 App. Cas. 662, 672. 'It seems to us clear,' said POLLOCK, C. B., in Stockport Water-works Co. v. Potter, 3 Hurl. & Co. 300-326, 'that the rights which a riparian proprietor has with respect to the water are entirely derived from his possession of land abutting on the river. If he grants away a portion of his land so abutting, then the grantee becomes a riparian proprietor and has similar rights.' No inference in such a case arises against the riparian right of the grantee because the land has been granted for a street. On the contrary, as was said in Barney v. Keokuk, 94 U. S. 324-340, 'a street bordering on the river, as this did, according to the plan of the town adopted by the decree of partition, must be regarded as intended to be used for the purposes of access to the river and the usual accommodations of navigation in such a connection;' that is, as appears by the decision in that case, to be used by the public for such purposes, as well as a highway, in contradistinction to the exclusive right of one claiming riparian rights as owner of the soil. Godfrey v. City of Alton, 12 Ill. 29. 'If the city,' said this court in New Orleans v. U. S. 10 Pet. 663-717, 'can claim the original dedication to the river, it has all the rights and privileges of a riparian proprietor.' Notley Young and the successor to his title had no property in the street, not even the right to insist that it should be maintained as such. The United States held its title to the land over which it was laid out, for its own use, and not in trust for any person or for any purpose. In that respect the case differs from Railroad Co. v. Schurmeir, 7 Wall. 272, where it was held that, as the city held the title to the street only in trust for the purposes of its dedication as such, the title remained in the original proprietor for all other purposes, and with a property right in its use as a street for his adjacent land. And it is immaterial that the ground laid out as a street was not in a condition to be used as a street, or that much labor was required to place it in that situation, or that, in fact, it had not been used as such for a long period of time. Barclay v. Howell's Lessee, 6 Pet. 504, 505; Boston v. Lecraw, 17 How. 426. 'A man cannot lose the title to his lands,' it is said in this case, 'by leaving them in their natural state without improvement, or forfeit them by non-user.' Page 436; McMurray v. Baltimore, 54 Md. 103. This denies no right that can be claimed by virtue of the compact between Virginia and Maryland of 1785, for that secured to their citizens 'the privilege of making and carrying out wharves,' as to the shores of the Potomac only, so far as they were 'adjoining their lands,' and such had always been the law in Maryland, notwithstanding the language of the act of 1745, c. 9, § 10, which was held to authorize the improvements therein spoken of, to be made by improvers in front of their own lots only. Dugan v. Baltimore, 5 Gill & J. 357; Wilson v. Inloes, 11 Gill & J. 351. The 'full property in the shares of Potowmack river,' spoken of in the compact, if it is not to be taken as a seizin of the land covered with water, but a right of occupation merely, properly termed a franchise, as said by HOSMER, C.J., in East Haven v. Hemingway, 7 Conn. 186-202, must be appurtenant to the land, the conveyance of which carries it as an incident; otherwise, if it implies an ownership in the soil of the shore, between high and low water mark, as land, it could not pass as an appurtenance by a deed conveying the adjoining land; for land cannot be appurtenant to land. Harris v. Elliott, 10 Pet. 25-54; Storer v. Freeman, 6 Mass. 435; Com. v. Alger, 7 Cush. 53. And in this view the title of the plaintiffs fails, because they show no conveyance of the locus in quo, as parcel, and claim it only as an appurtenance. An act of Maryland of January 22, 1785, authorizing an addition to Georgetown of land, according to a plat and upon conditions prescribed by the proprietors, confirms this view of the state of the general law in Maryland, by making express statutory provision 'that the proprietors of the lots fronting on the north side of Water street shall have and enjoy the exclusive right to the ground and water on the south side of their respective lots for the sole purpose of making wharves,' etc. The inference is irresistible that this was meant to give statutory sanction to an exception from the general rule. The same comment applies to the case of Hazlehurst v. Baltimore, 37 Md. 199, to which we are referred. There the street or highway that intervened between the wharf and the water was, by virtue of the statutes under which the work was executed, made part of the wharf itself, and subject to the right of the lot-owner for the purposes of a wharf, and to that extent it was held he had a right of property in it, of which he could not be deprived for public use except upon due compensation made. It is not denied and never was questioned that, as to the streets whose termini abutted on the river, the water front was subject to the riparian rights of the public for use as wharf or dock or landing place. On what principle can a distinction be drawn between that case and the one in hand, where the line of the river constitutes the side of the street running along the shore? The rights of the public are the same; especially where, as here, it was the soil of the street, as so much land, for all purposes. The true inference to be drawn from the plan of laying out such a street seems to us to be to secure to the public the very rights here in controversy, and to prevent private monopoly of the landing places for trade and commerce. For, as was said in Dutton v. Strong, 1 Black, 1-31: 'Piers or landing places and even wharves may be private,'—'or, in other words, the owner may have the right to the exclusive enjoyment of the structure, and to exclude all other persons from its use;' the question whether they are so, or are open to public use on payment of reasonable compensation as wharfage, depending in such cases 'upon several considerations, involving the purpose for which they were built, the uses to which they have been applied, the place where located, and the nature and character of the structure.' Undoubtedly, Notley Young, prior to the founding of the city and the conveyance of his land for that purpose, was entitled to enjoy his riparian rights for his private uses and to the exclusion of all the world besides. It can hardly be possible that the establishment of the city upon the plan adopted, including the highway on the river bank, could have left the right of establishing public wharves, so essential to a great center of population and wealth, a matter altogether of private ownership; for, even as to squares and lots that fell to the public on the division, it is equally contended by the appellants that those from whom they claim, with the lots also purchased the public riparian right appurtenant there o, with power to convert it to private use. It was for this reason held by the court of appeals of Kentucky, in the case of Rowan's Ex'r v. Portland, 8 B. Mon. 232, that where land along the river bank in a town had been laid out and dedicated by the proprietor for a public street, that the dedication for that purpose carried with it, as a necessary incident, the right in the public to build wharves and charge wharfage for the use thereof, to the exclusion of the original proprietor and his alienees of any private right of the same character. To the same effect is the judgment of the same court in Newport v. Taylor's Ex'r, 16 B. Mon. 699, 804. Various considerations, however, are urged upon us in argument in support of the appellants' claim, which, so far as we deem important, and the limits of this opinion will permit, we will now notice in order. 1. It is urged that the construction of the rights of the parties which deprives the claimants, under Notley Young and Greenleaf, of the rights of wharfage opposite their property, on the north side of Water street, in effect gives to the United States the entire water front on the Potomac river, without an equivalent, and thus violates that equality in the division which was expressly stipulated for in Notley Young's deed to Beall and Gantt. But there is no dispute as to the division that was actually made, and each party received, so far as the conveyances are concerned, precisely what he agreed to take and was satisfied with. The supposed inequality arises from a construction of law upon the transaction, as it is admitted or proved to have taken place, and its legal effect is not dependent upon its actual results. The devision, which it was agreed should be fair and equal, was of the lots into which the lands should be laid off; the grantor was to receive back any lands not so laid off, and the streets were to be the property of the United States, and, of course, with whatever appurtenant rights belonged to them as streets, or to the land over which they were laid out. 2. It is insisted, however, that the contemporaneous construction put by the parties themselves upon their own acts, requires a different conclusion. It is impracticable to refer specifically to the numerous letters, maps, plans, documents, and records of different descriptions, which the diligent research of counsel on both sides has compiled and placed in the record of these cases, as throwing light on the history of the transaction, and as evidence of the views of the actors in it. We can notice but a few, with the general remark that a careful consideration of everything bearing on the point to which our attention has been called, has failed to satisfy us that the conclusion reached, as the legal effect of the documents of title, is inconsistent with the actual intentions of the parties. In a letter to the president, explaining their regulations of July 20, 1795, the commissioners distinctly say 'that no wharves, except by the public, can be erected on the waters opposite the public appropriations, or on the streets at right angles with the water;' and that it is 'proprietors of property lying on the water' that are to be permitted to build wharves. It is possible, indeed, that the commissioners did not, at that time, contemplate that a street laid out along the margin of the river, as Water street was, would be on the same footing with what they deemed to be 'public appropriations,' and yet there is nothing in their communication inconsistent with that result, and the idea is clearly embraced in it when we apply the decision in the Van Ness Case to its terms; and their view to that effect is strongly implied in what they wrote to James Barry on October 5, 1795. He had written to them, saying that, 'as Georgia avenue meets the water at Third street, and can only begin again at the other side of the water, I request permission to erect a store or buildings, agreeably to the regulations of the water prop rty of square 771, without adverting to the imaginary direction of Georgia avenue, which runs across my wharf, and would totally render useless said wharf.' The commissioners replied, saying: 'We think with you that an imaginary continuation of Georgia avenue through a considerable depth of tide-water, thereby cutting off the water privilege of square 771 to wharf to the channel, too absurd to form a part of the plan of the city of Washington; that it never was a part of the plan that such streets should be continued through the water; and that your purchase in square 771 gives a perfect right to wharf to any extent in front or south of the property purchased by you, not injurious to navigation, and to erect buildings thereupon, agreeably to the regulations.' It is plainly to be inferred from this that if, as was the case of Water street, the street was laid down on the map as a continuous street, abutting on the river, and called for as the south boundary of the lots fronting on it, it would have been regarded by them as forming part of the plan of the city, 'thereby cutting off the water privilege' from the lots between which and the river it intervened. But on June 25, 1798, the commissioners had occasion to declare themselves explicity on the very point, in a letter to Nicholas King of that date, in answer to an inquiry from him in behalf of Robert Peter, requesting 'to know the extent of wharfing and water privilege attached to what was called water lots and assigned to him on division.' They replied as follows: 'SIR: We are favored with yours of the 22d instant in behalf of Mr. Peter. When the commissioners have proceeded to divide a square with a a city proprietor, whether water or other property, they have executed all the powers vested in them to act upon the subject. It appertains to the several courts of the state and the United states to determine upon the rights which such division may give. Any decision by us on the subject would be extrajudicial and nugatory. Of this, no doubt, Mr. Peter, if applied to, would have informed you. 'With respect to square No. 22 we do not conceive that it is entitled to any water privilege, as a street intervenes between it and the water; but, as there is some high ground between the water street and the water, we have no objection to laying out a new square between Water street and the channel, and divide such square, when laid out, so as to make it as beneficial to Mr. Peter and the public as circumstances will admit.' A transaction between John Templeman and the commissioners on January 24, 1794, is relied on as showing the rule acted upon in cases like the present. The commissioners, it is stated in the record of their proceedings of that date, sold to Templeman nine lots in square No. 8, and delivered him a certificate with the following indorsement thereon: 'It is the intention of this sale that the ground across the street next to the water, with the privilege of wharfing beyond the street in front and of the breadth of the lots, pass with them agreeably to the general idea in similar instances.' On January 15, 1798, the commissioners, it is recited in the same record of that date, executed a deed to Templeman of the lots named, 'together with all the land in front from Twenty-seventh street to river Potomac, with all rights of wharfing thereon, which deed is given by the request of Mr. Templeman in lieu of one dated the 3d instant, with the addition of lot 18, in square No 8, and the water privilege in front of the lots conveyed in square No. 8, the former deed having been first given up and canceled.' It will be observed that this is open to the construction that the wharfage privilege is appurtenant, not to the lots in square No. 8, but to the land sold with them on the opposite side of the street, and extending thence to the Potomac river, and which, of course, is riparian property. There was, in fact, no contemporary agreement of opinion on the subject. On the contrary, there was diversity of view and conflict of interest from the beginning. Various questions arose relating to the mode in which the privilege of building wharves should be exercised by those entitled to it, as well as to what constituted 'water lots,' to which such privilege belonged, and some of them were left undecided. On some of these the opinion of Charles Lee, attorney general, was taken on January 7, 1799; some were investigated and reported upon by a committee of the house of representatives on April 8, 1802; some were discussed by Atty. Gen. Breckinridge in an opinion dated April 5, 1806; the very matter of wharfing privileges was the subject of an opinion by Mr. Wirt, then attorney general, July 8, 1818, in which he expressed doubts as to the power of the commissioners to adopt the wharf regulation of July 20, 1795. The whole subject had been presented in a very interesting manner, from the point of view opposed to that expressed by the commissioners, but showing that differences of opinion existed, by Nicholas King, in a letter to the president dated September 25, 1803, and printed in Burch's Digest, 351. In that communication he attributed the doubt and uncertainty in which the matter was involved to the action of the commissioners. 'In laying off the city,' he says, 'they stopped, as before observed, on the bank of the river, sold the lots on the high ground with a water privilege, without defining either what the privilege is, or the extent or direction in which the purchasers were to wharf and improve.' 3. A special ground is maintained in behalf of the claim under lot 13, in square 504, derived from Greenleaf. On December 24, 1793, the commissioners made a contract in writing with Morris and Greenleaf for the sale and conveyance of 6,000 lots, 4,500 to lie south-west of Massachusetts avenue, and of them Morris and Greenleaf were to have 'the part of the city in Notley Young's land.' By this contract Morris and Greenleaf were excluded from selecting water lots, but with this proviso: 'Provided, and it is hereby agreed by and between the parties to these presents, that the said Robert Morris and James Greenleaf are entitled to the lots in Notley Young's land, and, of course, to the privileges of wharfing annexed thereto, and that lots adjoining the canal are not reckoned water lots.' From this it is sought to draw the inference that the lots in Notley Young's land fronting on the north side of Water street, have the appurtenant wharfing privileges claimed. But there is no sufficient foundation for this conclusion. Even if it were proper to resort to this preliminary agreement to supply what is not contained in the subsequent grant, made in execution of it,—which, we have seen, on the authority of the Case of Van Ness, we are not at liberty to do,—still, there is nothing to identify square 504 as a water lot out of the property of Notley Young. On October 18, 1794, as has been stated, the commissioners transferred to Greenleaf, Morris consenting, by certificate, 857 of these lots, including the one in question, and it may be that many of them were water lots, but which of them were is to be determined by the actual facts as to each, and not by any general description. There were lots, in Notley Young's land as laid out, which answered the description, without reference to those lying on the north side of Water street. That there was on the original plan of the city, and in the division made between the original proprietors and the United States, a classification of the squares and lots into 'water lots,' with riparian privileges, and the rest which were not, admits of no dispute. The exact nature of the difference is well pointed out in a very elaborate report made May 25, 1846, to the common council of the city, by a committe appointed to investigate the subject, and their conclusions on the point seem to us supported by the records and documents of the time. They say: 'Squares in the water with water lots were laid ff by the commissioners and divided with the proprietors on the navigable waters of the Eastern Branch, Potomac, and Rock creek. Water lots were defined by metes and bounds on three sides, and were estimated originally in the division, since in sales, and now for assessment by the front foot. * * * On the plan of the city all the streets are delineated and all the property laid off. Every owner of a lot in the city can tell by the description of it in his deed what are its bounds on all sides; if it has a water boundary, the deed says so, and he has a right to wharf out into the river; if it is bounded on all sides by the land, he has no such right, the right to wharf belonging only to land bounded by the water.' If there are any individual cases that are exceptions to these statements, nevertheless their general accuracy, we consider, well established, and that they manifest the original intention of the parties to the transaction. Disputes undoubtedly arose, some quite early, not so much as to what rights belonged to 'water lots,' nor as to what properly constituted a 'water lot,' but, in regard to particular localities, whether that character attached to individual squares and lots. In part, at least, the uncertainty arose from the fact that the plan of the city, as exhibited on paper, did not accurately correspond at all points with the lines as surveyed and marked on the land. Complaints of that description, and of designed departures from the plan, seem to have been made. It is also true, we think, that mistakes arose, as perhaps in the very case of the lots on the north side of Water street, owing to the fact that the street existed only on paper, and for a long time remained an unexecuted project; property appearing to be riparian, because lying on the water's edge, which, when the street was actually made, had lost its river front. They were thought to be 'water lots,' because appearing to be so in fact; but were not so in law, because they were bounded by the street and not by the river. 4. The plaintiffs rely upon the decision of the former circuit court for this district in the case of Chesapeake & Ohio Canal Co. v. Union Bank of Georgetown, 5 Cranch, C. C. 509, decided in 1838. The question in that case was whether the owner of lots in the city of Washington, lying on Rock creek, was entitled to compensation for a wharf and water privilege which had been condemned for the use of the canal company. It was contended on behalf of the latter that the owner of the lots never had any water privilege as appurtenant to them, because they were cut off from the creek by Twenty-eighth street west, and as the streets belonged to the United States, the water privilege belonged to them also. It appeared that Harbaugh, the owner, had built, maintained, and used a wharf in connection with the premises for 30 years without interruption, and that no part of the bank of the creek and no dry land lay west of the street, one-half of which was in the creek. It also appeared that he had bought from the United States, to whom the lots had been allotted in the division of the square between the public and the original proprietor, but the terms of the conveyance from the United States to Harbaugh are not stated. It was argued for the owner that the streets were conveyed to the United States only as highways, and did not deprive the riparian proprietors of their water rights, and reference was made to Nicholas King's title in Burch's Digest, to the wharf regulations of the commissioners in 1795, and to the Maryland act of 1791, c. 45, § 12. The court, it is stated, held that the title of Harbaugh to his wharf was good against the United States, claiming under a private citizen, (R. Peter,) the original proprietor, but gave no reasons for its opinion. No allusion was made by counsel or court to the case of Van Ness v. Mayor, etc., of Washington, supra, which had been decided in 1830, and in which the only point in behalf of the prevailing party, made by counsel in the case in the circuit court, had been ruled the other way. For that reason the judgment cannot be considered as evidence of the law of this district upon the question involved. The question of wharfage had been before the same court in another form in 1829, in the case of Kennedy v. Corp. of Washington, 3 Cranch, C. C. 595. That was an application for a mandamus to compel the corporation to make regulations prescribing the manner of erecting private wharves within the limits of the city, the showing in support of the motion for the rule being that the relator was the purchaser of lot No. 1 in square No. 329; that he had applied to the authorities for leave to build a wharf on that lot, and for directions in regard to the plan and construction of the wharf, all which they had refused. Mr. Wallach, for the corporation, argued that the power of the corporation over the subject was within its discretion, which the court would not control. Mr. Jones, on the same side, referred to the opinion of Nicholas King, in Burch's Digest, argued that it appertained to the courts of the several states and of the United States to determine upon these rights, and contended that the power of the commissioners upon the subject ceased to exist by the assumption of jurisdiction by congress, February 27, 1801, (2 St. 103;) the power given to the corporation being only to regulate the manner of erecting private wharves, not to limit the extent of them, or to interfere with the rights of owners of the land adjoining the river. The court refused the mandamus, it is said in the report, for the reasons stated in the argument of Mr. Jones and Mr. Wallach. 5. The decision just referred to, in the case of Kennedy's application for a mandamus, explains, probably, some subsequent action of the corporate authorities on the subject of wharfage, on which the appellants rely as evidence and confirmation of their claims. One of the practical difficulties experienced in the matter of building wharves arose from the fact that conflicts between private claimants, and with acknowledged public rights at the termination of streets upon the river, would exist if the wharf rights were extended to the channel between lines prolonged from the sides of the lots. This followed partly because the general course of the channel, measured by its chord, was less by about 280 feet than that of the shore line, and because the streets leading to the river were not parallel with the line of the lots. If any system of improvement, public and private, should be adopted, it would require an adjustment of these conflicts, and the subject became a matter of discussion in the municipal government and in the public press. On April 2, 1835, William Elliott, the surveyor of the city, made a report on the subject to the mayor and corporation. In this report he reviewed the history of the subject from the beginning, and concluded as follows: 'Therefore, from the foregoing authorities and arguments, the following facts are clearly deducible: '(1) That the channels of navigable rivers of the United States cannot be obstructed; (2) that the openings for the east and west streets, lying on the Potomac river and Rock creek, must not be interrupted, but must be carried to the channel in straight lines; and the openings for the north and south streets, facing on the Anacostia river, must also be left free to the channel; (3) that the power to regulate the docks, wharves, etc., is vested in the corporation of Washington and the agents they may appoint; (4) that no water privilege was specified or sold with the squares or lots, and that Water street was laid down on the plans of the city exhibited at the sales, and would appear to be the bounds of the lots and squares fronting the rivers. 'Having clearly established these powers and rights in the corporation, the following system of wharves and docks is respectfully submitted for consideration: (1) Let Water street be laid down conformably to the plan of the city; (2) let openings of the streets be prolonged to the channel, and in these openings, extending from Water street to the channel, let wharves be built upon piers; (3) let docks be formed in front of the squares. 'The result of this system would be that all the wharves and docks would belong to the city of Washington; that steam-boats and other vessels would have deep water and sufficient room to lie at the end of the wharves or piers, and small craft and boats in the docks, the current of the river would not be interrupted, and the water would flow freely under the wharves, and prevent the accumulation of filth, the source of disease; and the whole system would be perfectly conformable to the original plan of the city as laid down by the commissioners. 'Although I consider the above plan the best, and ought to have been adopted at the commencement of the city, yet, having understood that at the sale of the lots facing the rivers there was an implied water privilege sold at the same time, though neither expressed nor defined, this, therefore, would require that the spaces in front of the squares extending to the channel should be considered as water privileges; and that openings left for the streets to the channel should be considered as docks, and belonging to the public; also, that the spaces in front of the intersection of streets facing the rivers, or any other not facing private property, should be considered as belonging to the public, on which public wharves or docks may be built. 'A section of the last proposed plan may be seen at surveyor's office.' Accordingly, the surveyor submitted a map showing his plan, upon the second hypothesis, that the lots facing Water street were entitled to be recognized as having wharfing privileges, in which he exhibited that street as 100 feet wide in the narrowest part. On July 13, 1835, the following resolution was considered in the board of common council of the city of Washington: 'Resolved, that the corporation of Washington never has admitted, and cannot, without injury to the general interests of the city, admit, the existence of 'water rights of individuals' between the Potomac bridge and the Anacostia, and therefore it is inexpedient to adopt any plan which can be construed into an admission of such rights, or to consider any proposition which claims such admission.' This resolution was indefinitely postponed by a majority of one vote. Peter Force, a member of the council, well known in the public history of this city and country, by permission, entered on the journal the reasons for his dissent. These reasons were, briefly, that Water street belonged to the United States; that in the original plan of the city, and division and sale of squares and lots, those only were recognized as water lots which were laid off running to the channels of Rock creek, the Potomac river, and the Eastern Branch, respectively, all of which, on that account, were sold by the front foot, while all the others were laid off, bounded by streets and avenues, without any water privileges, and were sold by the square foot; and, among others, that the motion for indefinite postponement of the resolution had been carried by the vote of a member who had a direct personal and pecuniary interest in the assertion of a private right involved in the resolution against that of the public. In the mean time the discussion was transferred to the newspapers,—Mr. Force representing one side of the controversy, and the mayor, Mr. Joseph H. Bradley, the other. Nothing important seems to have been done by the city council until February 22, 1839, when the following resolutions were adopted, and were approved by the president of the United States: 'Resolutions in relation to the manner in which wharves shall be laid out and constructed on the Potomac river. 'Resolved, etc., that the plan No. 2, prepared by the late William Elliott, in eighteen hundred and thirty-five, while surveyor of the ity of Washington, regulating the manner in which wharves on the Potomac, from the bridge to T street south, and the plan of Water street, shall be laid out, be, and the same is, adopted as the plan to be hereafter followed in laying out the wharves and the streets on the said river, provided the approbation of the president of the United States be obtained thereto. 'Resolved, also, that the wharves hereafter to be constructed between the points specified in the said plan shall be so built as to allow the water to pass freely under them; that is to say, they shall be erected on piers or piles from a wall running the whole distance on the water line of Water street.' But these resolutions decide nothing as to the right, even if the corporate authorities of Washington were competent to do so, which they were not. The resolutions are not, however, even a recognition of the existence of any private right of wharfing, attached to the ownership of lots fronting on the north side of Water street. At the most, they recognize that there may be such rights. In point of law, they merely regulate the mode in which the right shall be exercised, whether private or public, leaving the question of title in each case to be judicially decided; for that was the extent of the jurisdiction which the corporation of Washington had over the subject. To notice further the many items of evidence which are contained in the record and have been referred to by counsel, in learned and laborious arguments, would prolong this opinion to an unnecessary and inexcusable length. Enough has been said to show that the rights of the parties respectively stand upon the legal effect of the original documents of title. According to them, as we have shown and now decide, the riparian rights claimed by the appellants, which originally were appurtenant to the land of Notley Young by virtue of its adjoining the Potomac river, passed to the United States by the conveyance which vested in them the ownership of the land on which Water street was laid out and has been built. The decree below, therefore, was right, and it is accordingly affirmed. Mr. Justice BRADLEY did not sit in these cases. MILLER, J., dissenting. In these cases the Chief Justice, Mr. Justice GRAY, and myself, do not agree with the judgment of the court. We concur in nearly all that is said in the opinion, and in the general proposition that where a town lot or other land is bounded on a street or road, or other highway, the fee to which is in some other person than the lot-owner, his rights as a landowner do not extend beyond the street, and in case the street occupies the bank of a river or other water way, no riparian rights attach to the lot or its owner. But we think the court has erred in the application of this doctrine to the present case by failing to give due weight to one or two considerations which we shall mention. 1. Notley Young was the original and sole owner in fee-simple of that part of the land on which Washington city was laid out, which includes the locus in quo, and there is no question that this ownership included the right to erect wharves on it on the Potomac river, where the wharf now in contest is constructed. In pursuance of the scheme by which a city with streets, lots, and squares was laid out in this land, he conveyed it in trust to Beall and Gantt. They were to lay it out into streets, squares, and lots. When this was done, the title in fee of the streets, as well as of such squares as were to be reserved for public uses, was to vest in the United States. Of all this property, after that was done, there was to be a fair and equal division between Young and the government, and Young's part was to be conveyed to him, and the other half to commissioners to be named by the president. The riparian rights of land-owners on the Potomac river were understood at that time as well or perhaps better than they are now, and the value attached then, and especially to the right to construct wharves, is shown clearly by the record, and by the act of the legislature of Maryland of December 19, 1791, cited in the beginning of the court's opinion. It therefore could not have escaped attention if the entire water way of the river, and the right of approach to it, and use of it in regard to wharves and landing-places, was vested exclusively in the United States, that no equal division was made of this important right, unless it was by the right attached to each lot which, but for Water street would be bounded by the river. No equivalent is given to Young for this valuable right, on the supposition that it all vested in the United States; no epxress words are used conveying it to the United States or dedicating it to the public. It cannot be successfully maintained that the right attaches as appurtenant to the street. The uses of a street, and of a wharf are entirely different, and while a dedication of a street to public use may not be inconsistent with the use of a part of it for a landing-place, it cannot be said to have as appurtenant to it a right to build a wharf into the river. If such a street had a definite width, it must happen that there would, by reason of the irregular curvature of the river, be detached pieces of land between it and the water. To whom did this land belong, unless to the lot which would embrace it if its lines were extended to the water? And if the lot did not embrace it, what equal division of this valuable land has ever been made with Mr. Young? As it was the duty of the trustees to divide the whole land, it will be presumed that they did it, and that this was their mode of doing it. The cases of Doane v. Broad Street Ass'n, 6 Mass. 332, and Hathaway v. Wilson, 123 Mass. 359, are directly in point. In the former case, a partition was made, under which the parties claimed, and it was insisted that certain flats, which were the subject of the contest, did not pass as appurtenant to a wharf allotted to one of the parties, because both the wharf and the flats were land, and land cannot pass as appurtenant to land. But the court said that though the flats were not specifically mentioned, yet the duty of the commissioners to partition them, and their relation to the wharf, which could not be used without passing over them, led to the fair inference that on the partition they were intended to pass as part of the wharf property. 2. This view is confirmed by the language of the commissioners, who made the division with Young, in the certificate which they gave him. This was not in form, a regular deed of conveyance, but is clearly intended to define the square or lots which fell to him in the division, and to remit him for his ownership to his original title, and for the nature of that ownership to the surrounding circumstances. Take square No. 472, one of those now in controversy, the certificate says that 'the whole of said square shall remain to the said Notley Young, agreeably to the deed of trust concerning lands in the said city.' Here is a plain remission to his original title and right, which, but for Water street, must include riparian rights also. And though this certificate is accompanied by a plat which shows Water street as lying between the square and the river, we are not able to see that this circumstance excludes the original riparian rights of Young, in the absence of any evidence that those rights were allotted to the government in the partition, or that Young anywhere received an equivalent for those rights unless he obtained it by this statement, that the 'square shall remain to Young agreeably to the deed of trust made by him.' No such deed was executed by the commissioners to purchasers of lots from the United States. This view of the matter was taken by Judge CRANCH in the ease of Chesapeake & Ohio Canal Co. v. Union Bank of Georgetown, 5 Cranch, C. C. 509, decided in 1838, and though the case is not fully argued by the court, the eminent ability of the judge who decided it, and his well-known accuracy as a reporter, and his knowledge of the local laws and customs of the city of Washington, entitle it to very great weight, as what he intended to decide is quite clear. The careful and elaborate letter of the commissioners to the president, of July 24, 1795, which states that 'no wharves, except by the public, can be erected on the waters opposite the public appropriations, or on the streets at right angles with the waters;' but 'with respect to the private property on the water' lays down regulations by which 'proprietors of property lying on the water' are to be permitted to build wharves, and to erect warehouses thereon, leaving spaces at certain distances for cross streets, evidently uses the words 'public appropriations' as distinct from 'streets,' and as designating the lots and squares set apart, with the president's approval, for the public use; and, by prohibiting the erection of private wharves at the end of 'the streets at right angles with the water,' and omitting to mention the shores by the side of other streets, clearly implies that such shores are not covered by the prohibition, but are to be treated as included in 'the private property on the water.' The lot set off to the United States, and afterwards sold to Morris and Greenleaf, is within the same principle. The declaration in the preliminary contract of 1793, between the commissioners and them, that the latter were entitled 'of course to the privileges of wharfing annexed' to these lots, while not evidence of a contract to control the terms of the subsequent more formal instrument, is of weight as showing what at that time was understood to be included in a description of the lots. When to this we add that no act of Congress has ever asserted ownership of these wharves or landing places, or the rights of a riparian owner, while they have conferred on the authorities of the district the power of regulating wharves, private and public, we are forced to the conclusion that these rights are left with the owner of the squares certified to Notley Young in the division with the United States.
106.US.468	1. The South Georgia and Florida Railroad Company having power, by its charter, to construct a railroad from Albany to Thomasville, Georgia, and from Thomasville to the Florida line, and to purchase and sell all kinds of property of every nature and quality, and to incorporate its stock with that of any other company, contracted with the Albany and Gulf Railroad Company to construct its road from Thomasville to Albany, and to sell and deliver it to the latter company in sections as completed, together with the franchise of using the same, and to incorporate its stock created for building said road with that of the Albany and Gulf Railroad Company. The latter had the same general power, except that of incorrtorating its stock with the stock of other companies, and had the right under its charter to construct a railroad from Thomasville to Georgia. Held, that the contract was not ultra vires, and that the latter company could lawfully make the purchase, and pay for the same by issuing its own stock therefor; which was delivered to and accepted by the contractors in lieu of the stock of the other company, which latter stock they had subscribed for and agreed to take in payment for the work of construction. 2. A railroad company having the right of constructing a particular line of railroad, with general power to purchase all kinds of property of whatever nature or kind, may purchase from another company a road constructed upon that line, if the latter company had power to sell and dispose of the same. 3. As a general rule, a corporation cannot transfer its franchises, nor a railroad company its road, without legislative authority. 4. Prior to the purchase, the Albany and Gulf Railroad Company had executed a trust deed by way of mortgage upon all its railroad and property acquired or to be acquired. Held, that inasmuch as the road purchased was within the chartered limits of the company, and might have been constructed if it had not been purchased, the mortgage extended to and covered it as effectually as if the company had constructed it. 5. The contractors who built the road and accepted in payment therefor the stock, and the assignees and purchasers of the stock, after the transaction between the two companies had been carried into effect and the road possessed and operated by the Atlantic and Gulf Railroad Company for several years, are estopped from claiming tle right to be regarded as stockholders of the South Georgia and Florida Railroad Company, or as preferred creditors as against the road. Having voluntarily accepted the position of' stockholders of the purchasing company, they cannot question the validity of the transaction adversely to it, or to the mortgage given by it, covering the road in question. 6. The stock thus issued and accepted was preferred stock, on which interest was payable. Hedd, that the holders thereof, and their assigns, having accepted it, and received interest on it for several years, are estopped from questioning the power of the company to issue it. 7. The South Georgia and Florida Railroad Company having received the stipulated consideration, and incorporated its stock with that of the Albany being in fact amalgamated therewith so far as the road in question is concerned, has no ground to complain that the terms of the contract have not been fulfilled by that company. It has lost nothing; and the liability which it incurred is protected by first liens on the road, the priority of which is conceded by all parties.	This case arises upon a bill filed by Morris K. Jesup, as surviving trustee, for the foreclosure of a deed of trust in the nature of a mortgage, bearing date of December 20, 1867, given by the Atlantic & Gulf Railroad Company of Georgia to said Jesup and one Gardner (since deceased) to secure the payment of certain bonds of the company to the amount of $2,000,000, payable in 1897, with interest. The bill was filed February 15, 1877, and on the nineteenth of the same month receivers were appointed to take charge of the mortgaged property, being the railroad of the company, with its rolling stock and machinery. A supplemental bill was filed on the twentieth of April, 1877. The only defendant named in either bill was the Atlantic & Gulf Railroad Company. The premises sought to be foreclosed and sold were—First, the main line of the company's road, extending from Savannah southwesterly and westerly to Bainbridge, in Georgia, a distance of about 237 miles; secondly, a branch road, extending from Dupont to the Florida line, about 32 miles, connecting, thirdly, with a short road in Florida, extending to Live Oak, in that state, which the company held and operated under a lease; fourthly, a branch road about 58 miles in length, extending from Thomasville, on the main line, northerly to Albany, Georgia; fifthly, two other small branches at Savannah, one connecting the main line with wharves on the Savannah river, and the other connecting it with the Savannah & Charleston Railroad. The Thomasville branch was purchased from the South Georgia & Florida Railroad Company in 1868 (shortly after the giving of the mortgage in suit) for the purpose of extending the line to Albany; which branch was subject to certain bonds and mortgages issued by the latter company, having a lien paramount to the mortgage in suit. The other branches were, in like manner, severally subject to certain prior mortgages, given for purchase money or construction, and having a paramount lien. The bill conceded the priority of the several liens. The defendant answered, specifying the liens on its property prior to that of the mortgage, and insisting that it would be inequitable to foreclose and sell at that time, although consenting to the appointment of receivers. On the twenty-second of April, 1878, Branch, Sons & Co. and others, (who are appellants here,) petitioned for and obtained leave to intervene pro interesse suo, claiming to be preferred creditors of tha Atlantic & Gulf Railroad Company, as to the proceeds and earnings of the South Georgia & Florida Railroad; that is, the branch from Thomasville to Albany. By amendment to the petition the South Georgia & Florida Railroad Company was also made a party, and a prayer was added to have declared void the sale of the said branch road and for its restoration to the South Georgia & Florida Railroad Company. By their petition of intervention the appellants insisted that the lien of the mortgage sought to be foreclosed does not cover the branch aforesaid; that the petitioners and others are holders of certificates of special guarantied 7 per cent. stock of the Atlantic & Gulf Railroad Company to the amount of some $300,000, of which the petitioners own $56,100; that these certificates were issued by the Atlantic & Gulf Railroad Company under a contract with the South Georgia & Florida Railroad Company, dated January, 1869, for the construction of its road from Thomasville to Albany; a copy of which contract and certain modifications of it, and a copy of one of the certificates, were annexed to the petition. The petitioners further contended that the earnings of that branch road, if kept by themselves, would be sufficient not only to pay the interest on the preferred bonds of the South Georgia & Florida Railroad Company, but to pay the interest on said certificates; that the guarantied scrip was given for the purchase of the South Georgia & Florida Railroad, and was distributed among the contractors who built it in payment for their labor; that it is in effect the promissory notes of the Atlantic & Gulf Railroad Company, and that the holders could proceed by attachment if the property of that company were not in the hands of receivers; and after making further averments as to the solvency of the South Georgia & Florida Railroad Company, if it stood alone, unconnected with the Atlantic & Gulf Railroad Company, the petitioners prayed for themselves, and the other holders of certificates, to be examined pro interesse suo touching their alleged paramount claim upon the proceeds of the South Georgia & Florida Railroad after payment of interest on its bonds, and for an order directing such examination before the master, and for other directions. In the amended petition the petitoners averred that the original holders of the certificates of preferred stock before mentioned were subscribers to the capital stock of the South Georgia & Florida Railroad Company, and paid their subscriptions by work done on the road, for which they received the said certificates of preferred stock in the Atlantic & Gulf Railroad Company, and that the present holders are bona fide purchasers of said scrip, except in some instances where the original holders have not parted with their scrip; and they alleged that when the contracts between the two companies were executed it was supposed that they had power to enter into the same; but that they are now advised that the contracts were ultra uires and void, and they prayed a rescission and the cancellation thereof; but if the court should decree that the contract only amounted to a lease of the road, (which they conceded would not be ultra vires,) then they prayed that it may be rescinded for non-compliance with its terms, and the inability of the Atlantic & Gulf Railroad Company to comply therewith. But if the court should think there was a valid contract of sale, then they repeated their prayer to be decreed to have a first lien on the proceeds of the road after the mortgages executed thereon by the South Georgia & Florida Railroad Company, and for a separate sale of that road subject to said mortgages. The first contract referred to in the petition bore date June 19, 1868, and provided that the South Georgia & Florida Railroad Company should complete its road from Thomasville to Albany, and turn it over in sections, as completed, to the Atlantic & Gulf Railroad Company, and that, when completed to Albany, the stock of the South Georgia & Florida Railroad Company should be incorporated with the stock of the Atlantic & Gulf Railroad Company, and that interest at the rate of 7 per cent. per annum on the actual cost of the road should be paid as well before such incorporation of stock as on said stock after its incorporation; and that, when the stock should be thus incorporated, all the rights, privileges, and franchises of the South Georgia & Florida Railroad Company, so far as related to the road from Thomasville to Albany, should vest in the Atlantic & Gulf Railroad Company, and said road should be a branch of the Atlantic & Gulf Road. This contract was modified by another contract made January 15, 1869, which recited that the legislature of the state had passed an act authorizing the state to indorse the bonds of the South Georgia & Florida Railroad Company, to the amount of $8,000 per mile; and that the Atlantic & Gulf Railroad Company consented to the issue of said bonds, and a first mortgage to secure them, and guarantied their payment; and it was stipulated that the amount of said bonds should be deducted from the amount of preferred stock to be issued to the South Georgia & Florida Railroad Company for the construction of the road. Another agreement, made September 1, 1869, authorized the further issue of bonds by the South Georgia & Florida Railroad Company to the amount of $200,000, to be secured by a second mortgage on the road, and guarantied by the Atlantic & Gulf Railroad Company. The road appears to have been completed to Albany prior to October, 1870. On the tenth of that month the following resolution was passed by the board of directors of the South Georgia & Florida Railroad Company: 'Whereas, the South Georgia & Florida Railroad Company entered into an agreement with the Atlantic & Gulf Railroad Company, on the nineteenth day of June, 1868, by which a transfer of the said South Georgia & Florida Railroad was to be made (that is, all of said road between Thomasville and Albany) upon certain conditions therein stipulated, all of which will more fully appear by reference to said agreements; and whereas, the South Georgia & Florida Railroad has been completed to East Albany and the same has been turned over to the Atlantic & Gulf Railroad Company, and which is now being operated by said Atlantic & Gulf Railroad Company; and whereas, the president of the Atlantic & Gulf Railroad Company has signified his willingness to receive said road finished to East Albany; and whereas, the South Georgia & Florida Railroad Company have made up the entire cost of said road and made affidavit certificate under oath as prescribed by said agreement,—it is therefore resolved that the president of this road proceed to Savannah, submit his estimates and certificates, and demand and receive the guarantied stock agreed to be given to the South Georgia & Florida Railroad stockholders under said agreements in terms of the several agreements made by the South Georgia & Florida Railroad Company with said Atlantic & Gulf Railroad Company. Resolved, further, that the president be, and he is hereby, authorized to make, execute, and deliver all papers necessary to carry out and fulfill said agreements for a transfer of so much of said South Georgia & Florida Railroad as lies or is located between Thomasville and Albany, specially reserving the other franchise or rights of building and equipping a railroad from Thomasville to the Florida line under the charter of the South Georgia & Florida Railroad Company.' This resolution was duly carried into effect shortly after its adoption, as appears by a final contract executed in due form between the companies, bearing date January 8, 1876, which recited the several prior contracts, and the said resolutions, and the fact of their acceptance and of the performance and fulfillment of the same, and by which the South Georgia & Florida Railroad Company made a formal conveyance to the Atlantic & Gulf Railroad Company, its successors and assigns, forever, of so much of the South Georgia & Florida Railroad as lies or is located between Thomasville and Albany, with all the appurtenances thereof, including the franchises of the South Georgia & Florida Railroad Company to construct and use the same. The certificates of stock issued by the Atlantic & Gulf Railroad Company in pursuance of said contract were regular scrip certificates for preferred stock in that company, in the following form: 'Atlantic & Gulf Railroad, Georgia. Special guarantied 7 per cent. stock issued under a contract with the South Georgia & Florida Railroad Company, bearing date January 2, 1869, for the construction of the South Georgia & Florida Railroad. This is to certify that Branch & Sons, or bearer, is entitled to 66 shares, on which the par value of $100 has been paid, of the special stock of the Atlantic & Gulf Railroad Company, on which interest from date is perpetually guarantied at the rate of 7 per cent. per annum, payable semiannually, etc. Witness, etc. Sealed, etc., first day of November, 1872. [Signed] JOHN SCRIVEN, President. Attest: D. MCDONALD, Secretary.' No evidence was taken in the case, and the hearing was had on bill and answer. It was conceded, or, at least, not controverted, that the intervenors were holders of the stock certificates as claimed in their petiton, and that said certificates originated in the manner and in fulfillment of the contracts therein set forth. The court below denied the prayer of the intervenors and dismissed the petition; and went on to make a final decree in the cause, ordering a foreclosure and sale of the railroad of the Albany & Gulf Railroad Company, with all its branches, including the branch from Thomasville to Albany, subject, however, to all prior mortgage liens, including the first and second mortgages on the Thomasville branch. From this decree the intervenors have appealed. The questions raised by the appellants, as stated in their brief, are as follows: (1) Was the sale of a part of the South Georgia & Florida Railroad and its franchises to the Atlanta & Gulf Railroad void as against public policy and ultra vires? (2) If not, did the contract amount to anything more than a lease? (3) If it was a sale, are not the South Georgia & Florida Railroad Company and other intervenors vendors with the purchase money unpaid, and hence entitled to assert their right of attachment upon the property sold, in preference to the claims of the mortgage creditors of the vendee, the Albany & Georgia Railroad Company? (4) If the intervenors are not entitled to attach as vendors, are they not creditors of the Albany & Gulf Railroad Company, and entitled to be paid out of property of the debtor which is not covered by the mortgage; and in this case does the mortgage cover the South Georgia & Florida Railroad? If only stockholders, can they not object to the sale of the South Georgia & Florida Railroad under the present proceedings? The court below was of opinion that the sale and purchase of the road was not void, nor ultra vires of the two contracting companies, without examining the question of the right of the appellants to contest the validity of the transaction. We will proceed to give some examination into that question. The appellants are stockholders of the Atlantic & Gulf Railroad Company. Their stock is preferred stock, it is true, entitling them to interest on its face before any dividends can be made to the common stockholders. But this is not inconsistent with its being stock. It is a very common thing in this country to issue stock of this kind. The interest accruing thereon is in the nature of preferred dividend, and is sometimes so called. Though after it has accrued it may become a debt, so also does a dividend become a debt after it has been declared and has become payable. It has no priority over other debts, if, indeed, it has an equality with them. And this position, as stockholders of the Atlantic & Gulf Railroad Company, was voluntarily assumed by the appellants. This is true, both of those who purchased their stock at second hand, and of those who originally received the stock. They probably deemed it to their interest to accept payment for their work in this form. But again, not only are they stockholders in the Atlantic & Gulf Railroad Company, but the acceptance of the stock was an acknowledgment of the validity of the contract between the two companies. The issue of the stock was in part performance of that contract, and this appears upon the face of the certificates. After thus acquiescing in the purchase by the Atlantic & Gulf Railroad Company of the branch railroad in question, and of the amalgamation of stock incident to said purchase, and after the possession and use of said road and its franchises by the said company as a part of its road system for a period of several years, the appellants are estopped from questioning the validity of said transaction, and cannot now repudiate their character of stockholders of the Atlantic & Gulf Railroad Company, and assume that of stockholders of the South Georgia & Florida Railroad Company. To sustain such a course on their part would have the effect of ripping up and unraveling a thousand transactions which have taken place on the basis of the purchase and amalgamation referred to. Whatever right the state may have to inquire into the validity of such purchase and amalgamation, certainly the appellants have no right in law or in equity to question it. In law, they are stockholders of the purchasing company, in which character they neither can nor do ask any relief; in equity, they are participators in the face of all the world in a transaction which is conceded to have been fair and supposed to be lawful at the time, and upon the faith of which numberless transactions in business, and in the stock and bonds of the purchasing company, have undoubtedly been entered into. To give to the appellants relief in any form in which it is asked, would be attended with injury and injustice to others who have innocently confided in the acts of the appellants and their associates. We might safely stop here and affirm the decree below on this consideration alone. But as our view of the other questions which have been raised leads to the same result, it may be proper to state the reasons therefor. The first relates to the power of the two companies to enter into the arrangement for the sale and purchase of the Thomasville branch. The power of the South Georgia & Florida Railroad Company to sell the road depends upon its charter, which took its origin in an act of the legislature approved January 22, 1852, creating the Georgia & Florida Railroad Company, with power to construct a railroad from Oglethorpe, or some other point on the Southwestern Railroad, to Albany; also with power to construct a railroad from Albany to Thomasville, and from thence to the Florida line in the direction of Tallahassee; also a plank or macadamized road in connection with the railroad; and for the purpose of constructing said road or roads, procuring right of way, and managing all its affairs, the said compary was invested with the same powers and privileges granted to the Savannah & Albany Railroad Company, not inconsistent therewith; and it was enacted that the said Georgia & Florida Railroad Company might at any time incorporate their stock with the stock of any other company on such terms as might be mutually agreed upon. The company was further authorized, from time to time, to determine the amount of stock necessary to carry out its purposes and the construction of said road or roads. The powers given in this charter by adoption and reference to the charter of the Savannah & Albany Railroad Company consisted, as expressed in the charter of the latter company, of all the rights, privileges, and immunities which by the laws of Georgia were held or enjoyed by any incorporated railroad company or companies in the state; and by a reference to prior existing charters we find that, so far as relates to the question in hand, these powers were, 'To have, purchase, possess, enjoy, and retain lands, rents, hereditaments, tenements, goods, chattels, and effects, of whatsoever kind, nature, or quality the same may be, and the same to sell, grant, demise, alien, or dispose of.' All the powers thus given to the Georgia & Florida Railroad Company in 1852 were conferred upon the South Georgia & Florida Railroad Company by an act passed December 22, 1857. By this act the South Georgia & Florida Railroad Company was created, and the line of road which the Georgia & Florida Company was authorized to construct from Albany to Thomasville, and thence to the Florida line, was separated from the rest and granted to the South Georgia & Florida Railroad Company, which company was invested with the usual powers to purchase, hold, and convey property, real and personal, and with specific power to construct a railroad from Albany 'to Thomasville,' and from Thomasville to any point on the Florida line,' and to connect with any other road at such points as they should deem best; and it was enacted 'that the provisions of the act incorporating the Georgia & Florida Railroad Company, so far as applicable, shall be applied to said South Georgia & Florida Railroad Company.' By reference and adoption, therefore, the latter company became invested with all the authority and power, in regard to the line between Albany and Thomasville, and between Thomasville and the Florida line, which had been conferred upon the George & Florida Railroad Company. It seems to us clear that these powers were sufficient to enable the company to sell its road and franchises to any company competent to purchase them. As a general rule, it is true, a railroad company, with only the ordinary power to construct and operate its road, cannot dispose of it to another company. Legislative aid is necessary to that end. But this company had, by its charter, express power to incorporate its stock with the stock of any other company. This power has an enlarging effect upon the ordinary power to sell and dispose of property belonging to the company. Generally, the power to sell and dispose has reference only to transactions in the ordinary course of business incident to a railroad company, and does not extend to the sale of the railroad itself, or of the franchises connected therewith. Outlying lands, not needed for railroad uses, may be sold. Machinery and other personal property may be sold. But the road and franchises are generally inalienable; and they are so not only because they are acquired by legislative grant, or in the exercise of special authority given, for the specific purposes of the incorporating act, but because they are essential to the fulfillment of those purposes; and it would be a dereliction of the duty owed by the corporation to the state and to the public to part with them. But where, as in this case, power is given to incorporate the capital stock with the stock of any other company, a very large addition is made to the ordinary powers granted to a company. In this country, the creation and exercise of such a power is well understood. It contemplates not only the possible transfer of the railroad and its franchises to another company, but even the extinguishment of the corporation itself, and its absorption into a different organization. The greater power of alienating or extinguishing all its franchises, including its own being and existence, contains the lesser power of alienating its road and the franchises incident thereto and necessary to its operation. Its power of alienation and sale extends to a class of subjects to which it does not ordinarily apply. In view of the large power thus conferred upon the South Georgia & Florida Railroad Company, we cannot doubt that it had full power to enter into the arrangement made with the Atlantic & Gulf Railroad Company for the transfer of that portion of its line extending from Albany to Thomasville, including the franchise of constructing and using the same, and an incorporation of all its stock issued for the construction of said road with the stock of the latter company. It is true that the South Georgia & Florida Railroad Company did not part with its entire franchise. Power was given to it by its charter to construct a road from Thomasville to the Florida line, (being a distance of about 15 miles due south,) and to connect with any other road at such points as it might deem best. But this extension is mentioned as a distinct enterprise, has never been entered upon, and would have no value without a connection with some railroad in Florida, for which, so far as appears, no authority has thus far been accorded by that state. The authority to make it is nominal only, if it has not entirely expired by lapse of time; and could be of little use to the Atlantic & Gulf Railroad Company, which had a connection of its own with the Florida system of railroads at Live Oak. The retention of this nominal franchise by the South Georgia & Florida Railroad Company, which has never issued any capital stock under it, or with a view to its use, seems to be in reality a mere shadow without any substance. All the capital stock which the company ever provided for was that which went to the building of the road from Thomasville to Albany, and that, at its very inception, was incorporated with the stock of the Albany & Gulf Railroad Company; the stock of the latter company being issued and accepted in the place of it. So that, in truth, the terms of the charter have been literally carried out. At all events, we think that the arrangement made with the latter company was within the powers given to the South Georgia & Florida Railroad Company; and this arrangement was fully assented to and acquiesced in by every subscriber to its stock, as before mentioned. In this connection, it is proper to notice a fact which has been referred to by the counsel of the appellants in support of his views, but which seems to us corroborative of the view which we have taken of the powers of the South Georgia & Florida Railroad Company. The original route authorized to be taken by its parent company, the Georgia & Florida Railroad Company, extended, as we have seen, from Oglethorpe, or some other point on the Southwestern Railroad, to Albany, with authority also to construct a railroad from Albany to Thomasville, and from thence to the Florida line. Afterwards, as we have also seen, in December, 1857, the South Georgia & Florida Railroad Company was created, and that portion of the route extending from Albany southward to Thomasville and the Florida line was transferred to the latter company, with all the general powers of the parent company, amount which was the power to incorporate its stock with that of any other company. The northern part of the original route, extending from Albany northward to Americus, a point of connection with the Southwestern Railroad, still remained under the original charter; and this part (between 30 and 40 miles in length) was afterwards transferred to the Southwestern Railroad Company with an incorporation of stock, similar to what was done by the South Georgia & Florida Railroad Company with the southern part of the line. But it seems that the Southwestern Railroad Company had not sufficient unissued stock to pay for the road thus acquired. Whereupon an act was passed by the legislature 'to amend the charter of the Southwestern Railroad Company, and to authorize an increase of the capital stock of said company,' etc., by which, after reciting the power given to the Georgia & Florida Railroad Company to incorporate its stock with the stock of any other company, further recited that the latter company had agreed with the Southwestern Railroad Company to incorporate its stock with the stock of that company, and had delivered its railroad running from Americus to Albany to the Southwestern Railroad Company, and had received stock of the said company to the amount of near $500,000, and that it thereby became necessary to increase the capital stock of said Southwestern Railroad Company. It was therefore enacted that the latter company to authorized to issue stock in addition to the amount mentioned in its charter for any sum not exceeding $500,000, and that the road from Americus to Albany should be considered part and parcel of the road of the Southwestern Railroad Company, and be liable to pay to the state the same tax that the rest of the Southwestern Railroad Company was liable to pay. This arrangement, which the legislature thus enabled the Southwestern Railroad Company to carry out, (and in doing so recognized its validity,) was precisely similar to that which had been made between the South Georgia & Florida Railroad Company and the Atlantic & Gulf Railroad Company in regard to the road from Albany to Thomasville. The only difference between the two cases was that the Southwestern Railroad Company had to get power to issue additional stock—a power which the Atlantic & Gulf Railroad Company did not need, as it already had authority to issue the amount of stock required for carrying out its arrangement with the South Georgia & Florida Railroad Company; at least, it is so stated, and is not denied, nor is the contrary alleged in any of the pleadings. The point taken in relation to the issue of stock by the Atlantic & Gulf Railroad Company, in payment of the road purchased by it, is not that the company had no power to issue that amount of stock, but that it had no power to issue preferred stock. But it hardly lies in the mouth of those who received this stock, and who for several years accepted the interest guarantied to be paid thereon, to make this objection, especially as no other parties, neither the state nor the holders of the common stock, have ever objected to the issue of this preferred stock. Without entering, therefore, into a discussion of the abstract question whether a railroad company may not issue a preferred stock, when done in good faith, instead of issuing bonds to the same amount, it is sufficient to say that the appellants are not in a position to raise the question. But, supposing it to be shown that the South Georgia & Florida Railroad Company had the power to sell, had the Atlantic & Gulf Railroad Company the power to buy the road in question? The latter company was formed by the amalgamation of two distinct companies, and became invested with all the powers contained in the charters of both. These companies were—First, the Savannah, Albany & Gulf Railroad Company, chartered in 1847, under the name of the Savannah & Albany Railroad Company; and, secondly, the Atlantic & Gulf Railroad Company, chartered in 1856. The first of these companies was authorized to construct a railroad communication between Savannah and Albany, by such route as the company might select, with such branch road towards the north and towards the south from said road to such point or points as they might deem requisite; with power also, at any time, to extent said road to any point or points on or across the Chattahoochee river. Besides the ordinary corporate powers given to this company, it was invested, as already mentioned, 'with all the rights, privileges, and immunities which, by the laws of Georgia, are held and enjoyed by any incorporated railroad company or companies.' The Georgia Railroad & Banking Company had been chartered in 1835. Other railroad companies in Georgia, then in existence, had power 'to have, purchase, receive, possess, enjoy, and retain lands, rents, tenements, hereditaments, goods, chattels, and effects of whatsoever kind, nature, or quality, and the same to sell, grant, demise, alien, or dispose of.' See charters of Georgia Railroad and Central Railroad Company, Gaines, being in a general westerly consolidated as aforesaid, to-wit, the Atlantic & Gulf Railroad Company, had power to construct a railroad from a point in Wayne county, southwest of Savannah, to the western boundary of the state south of Fort Gaines, being in a general western direction across the southern part of the state; but it was provided that the Savannah, Albany & Gulf Railroad Company, as well as the Brunswick & Florida Railroad Company, might join their tracks with that of the Atlantic & Gulf Railroad Company. The latter company was invested with all the privileges, immunities, and exemptions granted to the Central, and to the Georgia Railroad Companies, or either of them. The two companies, Savannah, Albany & Gulf, and Atlantic & Gulf, were consolidated under the name of the latter company by virtue of an act passed in April, 1863, by which it was provided that 'the several immunities, franchises, and privileges granted to said companies by their original charters, and the amendments thereof, and the liabilities therein imposed, shall continue in force.' From these charters and laws it appears that the consolidated company had power to construct a railroad from Savannah to the south-western border of the state; and, among other things, to construct a railroad communication between Savannah and Albany, and to make branch roads towards the north and towards the south; and, even before the consolidation, the Savannah & Albany Company was authorized to join its tract to that of the Albany & Gulf Company; so that the line of roads, as finally located, constructed, and acquired, including the branch from Thomasville to Albany, cannot be said to have departed in any respect from the strict course pointed out and designated by the charters of the consolidated companies. The main line commences at Savannah, under the charter of the Savannah & Albany Company, and runs south-westerly to Wayne county, and thence, under both charters (for both companies were authorized to use the same track) westwardly to Thomasville and Bainbridge, in the southwestern part of the state, with a branch running from Dupont towards the south into Florida, and a branch from Thomasville towards the north to Albany, forming a railroad connection between Savannah and Albany. In making the railroad connection between Savannah and Albany, the original charter of the Savannah & Albany Railroad Company could not be construed to require that this connection should be made by a rigidly straight line. The directors were invested with reasonable discretion as to the route to be taken; and since the subsequent legislation expressly authorized the Savannah & Albany Company to join its track with that of the Albany & Gulf Railroad Company, it is clear that the line of the latter company was not regarded as an improper departure for that of the former. Indeed, by an act passed in 1857, the Albany & Gulf Railroad Company were required to get the release of the Savannah & Albany Company of its right of way over the line of its contemplated road, before it could have the state subsidy proposed to be given to it; which plainly shows that the line of the Albany & Gulf road (which properly lay through Thomasville) was regarded as within the fair limits of the route granted to the Savannah & Albany Company. This being so, the branch road from Thomasville to Albany was fairly within the power and authority given to the Savannah & Albany Company by its original charter, to establish a railroad connection between Savannah and Albany. Then, since the consolidated company had authority to construct a railroad from Thomasville to Albany, and to establish the railroad connection between Savannah and Albany in that way, and had the general power to purchase and receive property of every conceivable kind, nature, or quality, (limited, of course, by the general objects of its charter), what was to hinder its purchasing from the South Georgia & Florida Railroad Company its line of road between Thomasville and Albany, and paying for it by the issue of its own stock—an arrangement which, as we have seen, the South Georgia & Florida Railroad Company, on its part, had a perfect right to make? It seems to us that this question is not hard to answer; but that it is clear that the one company had the right to purchase this road as fully as the other company had the right to sell it; and that the right of both was fully given by the charters and laws which gave them their respective powers. We do not mean in the slightest degree to disaffirm the general rule that a corporation cannot dispose of its franchises to another corporation without legislative authority; but we think that the authority clearly existed in this case, being fairly derived from the legislation which affected the two companies, without any forced or strained construction of its terms. The second question raised by the appellants, namely, whether the contract amounted to anything more than a lease, has been sufficiently answered by what has already been said. The transaction between the companies had in view a transfer of the entire interest of the South Georgia & Florida Railroad Company. The third question raised is whether the South Georgia & Florida Railroad Company and the other intervenors are not vendors whose purchase money is unpaid, and who are thence entitled to assert a right of attachment upon the property in preference to the claims of the mortgage creditors of the Atlantic & Gulf Railroad Company, the vendee? The original intervenors are certainly not entitled to assume any such position. As already shown, their status is fixed by their own choice as stockholders of the Atlantic & Gulf Railroad Company. They are such, and nothing more, except as to the interest due on their stock, as to which they are nothing more than general creditors. As to the South Georgia & Florida Railroad Company, it has no claim at all. It received all that it stipulated for. The priority of its bonds and mortgages is fully conceded; and its stock, so far as the railroad in question is concerned, was incorporated with that of the Atlantic & Gulf Railroad Company, with which it became amalgamated and identified. Its separate existence protanto became merged in the latter company. How far it can ever be galvanized into now life for the purpose of the extension of the road from Thomasville to the Florida line, it is not necessary to inquire. That question has nothing to do with the one now in hand. The only remaining question is whether the deed of trust or mortgage given by the Atlantic & Gulf Railroad Company to the complainant and his co-trustee covers the railroad in question. In terms it covers and pledges the entire railroad of the Atlantic & Gulf Railroad Company in Georgia, constructed, or to be constructed, from Savannah to Bainbridge, or to and from any other points in the state of Georgia, with its appurtenances, with all rights of way acquired, or thereafter to be acquired or obtained, and all rolling stock and machinery acquired or to be thereafter acquired, and all franchises, rights, and privileges connected with or relating to said railroad, or the construction, maintenance, or use thereof. Under the settled rule in regard to the operation of railroad mortgages on after-acquired property, where the terms of the instrument extent to such property, there can be no question that the mortgage in this case did extend to and cover any portion of road belonging to the company and authorized by its charter, which was constructed after the mortgage was given. The only question here is whether the railroad from Thomasville to Albany is fairly within this category. We have already seen that the company had the power to construct this line; that it was within its chartered limits. There can be no doubt, therefore, that if the road had been constructed by the company without any reference to the South Georgia & Florida Railroad Company, it would have fallen directly within the operation of the rule in question. Instead of constructing it directly, the Atlantic & Gulf Railroad Company procured its construction through, and by arrangement with and purchase from, the South Georgia & Florida Company. Can this make any difference? When constructed, the road became part of the system of roads of the Atlantic & Gulf Railroad company, as much so as if it had constructed it independently. A road purchased as and for a part of its chartered line is no less a part of its proper road than one built for that purpose. Provision was made, it is true, in the contract between the companies, for a prior lien in favor of the mortgages separately placed upon the road thus acquired. That lien is conceded to be valid and binding. But, subject thereto, the mortgage given to the complainant properly extends to and covers this road as part of the entire line of the company. It is embraced in the terms of the mortgage, and is in law subject to its operation. It is part of the lawfully-acquired property of the Atlantic & Gulf Railroad Company—acquired under its chartered rights and powers. It is the property of no other company. It is subject to the debts of no other company, except those which attached to it by virtue of the superior mortgage liens before mentioned. The appellants, as stockholders of the company, equally with the company itself, are bound by the mortgage. Their claims are inferior and subject to it. Their position as general creditors, in regard to any interest due them, is equally inferior. They have no equity that can prevail against it. The appellants have suggested several subsidiary points which, regard being had to the views we have already expressed, cannot affect the result. One point is that the charter of the South Georgia & Florida Railroad Company expired in 1872, before the execution of the final deed to the Alantic & Gulf Railroad Company. We do not understand that the charter expired at that time, but only that the time limited for the construction of the road expired. If the charter expired, how did the company become a party to this suit? But even if the charter did expire, the road was finished and in the possession of the Atlantic & Gulf Railroad Company in 1870, and the entire transaction was then completed. The conveyance executed in 1876 was merely carrying out in form what was already completed and carried out in substance. But how can this objection avail the appellants in any view of the case? What right have they to object to the conveyance? Its only purpose was to carry out what they and all the parties concerned consented to and acquiesced in long before. And in their position, as stockholders of the Atlantic & Gulf Railroad Company, it does not lie in their mouths to object that the South Georgia & Florida Railroad Company unlawfully exercised corporate powers when it completed the performance of its obligation to the Atlantic & Gulf Railroad Company. But it is unnecessary to pursue the subject further. We see nothing in the points raised on the appeal to invalidate the decree of the circuit court. The decree is, therefore, affirmed.
108.US.436	1. The B. H. & E. Railroad, a corporation created by the State of Cbnnecticut, purchased the franchises and railroad of the H. P. & F. Railroad, a corporation created under the laws of Rhode Island and Connecticut. The legislature of Rhode Island ratified the sale, and authorized the B. H. & E. Company to exercise the rights, privileges, and powers of the H. P. & F. Company: Held, That the B. H. & E. Company thereby became the legal successor of the H. P. & F. Company in Rhode Island ; and, in respect to its railroad in Rhode Island, a corporation of that State. 2. The State of Rhode Island authorized by an act of its legislature the B. H. & E. Company to extend within the limits of the State the road thus acquired. The act further contained the following proviso: "This act shall not go into effect unless the said B. H. & E. Company shall, within ninety days from the rising of this general assembly, deposit in the office of the general treasurer their bond, with sureties satisfactory to the governor of this State, in the sum of $100,000, that they will coinplete their said road before the first day of January, A. D. 1872." Within the time named the requisite bond was filed in the sum of $100,000 conditioned as follows: "Now, therefore, if said B. H. & E. Company shall complete their said railroad before the first day of January, A. D. 1872, then the aforewritten obligation shall be void; otherwise be and remain in full force and effect;" and as the requisite security for the payment of thebond, a loan certificate of the city of Boston for $100,000 was deposited with the State treasurer. The B. H. & E. Company became bankrupt. The assignees in bankruptcy filed a bill in equity to restrain the treasurer of the State from collecting the certificate. The treasurer demurred, on the ground that the real party in interest was the State. In the course of the proceedings the money was paid into court on an interlocutory decree. The State then came in and claimed it: He, (1.) That the voluntary appearance by the State disposed of the demurrer and conferred jurisdiction to adjudicate upon the rights of the State. The case distinguished from Georgia v. Jesup, 106 U. S. 458. (2.) That the sum named in the bond in question was not a penalty.to secure the performance of a condition, which could be discharged on payment of such damages as might be proved to have arisen from non-performance; but that it was in the nature of a statutory penalty for the non-performance of a statutory duty, and that it was not necessary for the State to show any actual damage or injury from the breach, in order to be entitled to recover when the breach was proved. The law and cases on this subject considered and reviewed.	The appellees, who were complainants below, filed their bill in equity, as assignees in bankruptcy of the Boston, Hartford & Erie Railroad Company, against Samuel Clark, general treasurer of the state of Rhode Island, and the city of Boston and Frederick U. Tracey, its treasurer. The bill alleged— That the Boston, Hartford & Erie Railroad Company was a corporation created by the states of Connecticut and Massachusetts for the purpose of building, acquiring, and operating a railroad from Boston, in Massachusetts, to Willimantic, in Connecticut, and from Providence, in Rhode Island, to Willimantic, and from Willimantic through Waterbury to the state line of Connecticut, and thence to Fishkill, in New York; that the directors of the company, without authority from the corporation or by law, applied to the legislature of Rhode Island in 1869, and obtained the passage of an act entitled 'An act in addition to an act to ratify and confirm the sale of the Hartford, Providence & Fishkill Railroad to the Boston, Hartford & Erie Railroad Company,' by which the company was authorized to locate and construct a railroad in extension of their line of railroad purchased of the Hartford, Providence & Fishkill Railroad Company, commencing at their depot in Providence, thence running to the easterly line of the state in or near the village of Valley Falls, to meet and connect with a Massachusetts railroad extending through North Attleborough from Boston, so as to make a continuous line of railroad in a northerly and southerly direction between Providence and Boston; that this act contained a provision in the following terms: 'This act shall not go into effect unless the said Boston, Hartford & Erie Railroad Company shall, within 90 days from the rising of this general assembly, deposit in the office of the general treasurer their bond, with sureties satisfactory to the governor of this state, in the sum of $100,000, that they will complete their said road before the first day of January, A. D. 1872;' that this condition was not complied with, and that the said act, therefore, never took effect and is wholly null and void; that, after the passage of the act, the directors and officers of the corporation, without authority and in abuse of their trust and duty, filed with one Samuel Parker, then the general treasurer of Rhode Island, a paper, purporting to be the bond of the corporation, but without sureties, and fraudulently took of the funds of the corporation the sum of $100,000, and deposited the same with the city treasurer of Boston in exchange for the obligation of that city, a copy of which is as follows: 'TEMPORARY LOANS, CITY OF BOSTON. '$100,000. No. 6. 'This certifies that, for value received, there will be due from the city of Boston, payable at the office of the city treasurer, on demand, after the first day of December next, to the general treasurer of the state of Rhode Island, or order, the sum of $100,000, with interest at the rate of 7 per cent. per annum, in current funds. 'This loan being authorized by an order of the city council passed the ninth day of June, 1869, to anticipate the income of the present financial year. 'Interest will not be allowed after this note is due. 'June 28, 1869. ALFRED T. TURNER, Auditor. 'FRED. U. TRACEY, Treasurer. NATH'L B. SHURTLEFF, Mayor.' — That the directors and officers of the company, without consideration and without authority, deposited this certificate and obligation with the said Parker, who received the same without warrant of law, and thereupon held the same to the use of the railroad company; that the corporation never accepted the act of the legislature recited; that the railroad authorized thereby has never been built, nor any work done thereon, nor has the state of Rhode Island, nor any citizen thereof, suffered any damage or loss by reason thereof; that the general assembly of Rhode Island considered that the filing of the certificate and obligation of the city of Boston was not a compliance with the act, and did not ratify the taking of the same till after the bankruptcy of the railroad company; that said bankruptcy was adjudicated on October 21, 1870, and the complainants became assignees in bankruptcy of said company from that date, and entitled to the money represented by the said certificate; that Samuel Parker having died, the respondent Clark succeeded him as general treasurer of Rhode Island, and came into possession of the said certificate, which, it is alleged, however, he holds wrongfully, and in his individual and not his official capacity, and to the use of the complainants, but which, nevertheless, he thereatens to collect and withhold from them the proceeds thereof. The prayer of the bill is—— 'That the said respondent Clark may be decreed to have no right, title, or interest in or to the said paper writing A, or in or to the said money so deposited with the said respondent Tracey, or to any part thereof, and that he may be decreed to assign and deliver over the said paper A to your orators, and may be enjoined and restrained from presenting the same to the said respondent Tracey, or to the said city of Boston, or from receiving any money or payment whatsoever thereon or therefor, or any part thereof, or from receiving or holding the said sum of $100,000, or any part thereof, from the said respondent Tracey, or the said city of Boston, and that the said respondent Tracey and the said city of Boston may be decreed to pay over to your orators, as assignees as aforesaid, the said sum of $100,000, with interest thereon, and may be enjoined and restrained from paying the same, or any part thereof, or any money on account thereof, to the said respondent Samuel Clark, the general treasurer of the state of Rhode Island, and that your orators may have such other and further relief as to your honors shall seem meet, and as the nature and circumstances of the case shall require.' To this bill a demurrer was filed by Clark for want of jurisdiction, on the ground that it was, in substance, a suit by citizens of one state against the state of Rhode Island. This demurrer was overruled. Clark then filed his answer, denying the material allegations of the bill, asserting that the transaction was with the state of Rhode Island, through the treasurer in his official capacity, and insisting upon the immunity of the state from suit by citizens of other states as a defense. The cause came on for hearing upon the pleadings and proofs, when an interlocutory decree was passed, April 15, 1878, ordering the payment of the money due from the city of Boston upon the loan certificate into the registry of the court, with liberty to the defendant Clark to take and file evidence in support of any claim for damages by reason of the breach of the bond of the Boston, Hartford & Erie Railroad Company to the state of Rhode Island; and further ordering that on final hearing, and upon filing in court the certificate of indebtedness, the general treasurer of the state of Rhode Island should have and recover of the said sum in the registry such portion, or the whole thereof, as should amount to the sum, if any, for which any surety might or for which the principal obligor in said bond would be liable, upon the evidence, either for any penalty or damages by reason of the non-performance and breach of the conditions of said bond. On May 3, 1878, the city of Boston paid into court the sum of $100,000, and, in addition, the interest accrued to December 1, 1869, and subsequently, on February 25, 1880, an additional amount for interest in full. On March 17, 1880, the following claim of the state of Rhode Island was filed by the allowance of the court as of April 15, 1878, after the entry of the interlocutory decree of that date: 'And now comes the state of Rhode Island, by the undersigned, the same counsel who have appeared for the defendant Clark, general treasurer of said state, and, without prejudice to the demurrer of said general treasurer, claims the fund in the registry of the court.' This was signed by counsel. On final hearing the fund was awarded to the appellees; and from that decree Clark, general treasurer of the state of Rhode Island, and the state of Rhode Island appealed. The state itself is a party to the appeal bond, which recites that the state of Rhode Island was an intervenor and claimant of the fund in court, and that a decree was rendered against it as such. The bond executed and delivered by the Boston, Hartford & Erie Railroad Company to the state of Rhode Island is as follows: 'Know all men by these presents that the Boston, Hartford & Erie Railroad Company, a corporation created by the general assembly of the state or Connecticut, is held and firmly bound to the state of Rhode Island and Providence Plantations in the sum of one hundred thousand dollars, to be paid to said state of Rhode Island and Providence Plantations; to which payment, well and truly to be made, the said corporation doth bind itself and its successors firmly by these presents. 'The condition of the aforewritten obligation is such that whereas, by an act of the general assembly of said state of Rhode Island, entitled 'An act in addition to an act entitled an act to ratify and confirm the sale of the Hartford, Providence & Fishkill Railroad to the Boston, Hartford & Erie Railroad Company,' passed at the January session, 1869, said Boston, Hart-ford & Erie Railroad Company are authorized and empowered to locate, lay out, and construct a railroad in extension of their line of railroad purchased of the Hartford, Providence & Fishkill Railroad Company, commencing at a point in their said purchased railroad at or near their freight depot in the city of Providence; thence running westerly and northerly by a line westerly of the state's prison, a little easterly of the Rhode Island Locomotive Works; and thence by nearly a straight line and crossing or running near to Leonard's Pond; and thence passing between the villages of Pawtucket and Lonsdale, and over and above the Providence & Worcester Railroad; thence continuing to the easterly line of the state, in or near the village of Valley Falls: 'Now, therefore, if said Boston, Hartford & Erie Railroad Company shall complete their said railroad before the first day of January, A. D. 1872, then the aforewritten obligation shall be void; otherwise be and remain in full force and effect. 'In testimony whereof, said Boston, Hartford & Erie Railroad Company have caused this instrument to be signed by John S. Eldredge, its president, and its corporate seal to be thereto affixed, this twenty-third day of June, 1869. [L. S.] 'BOSTON, HARTFORD & ERIE R. R. Co., 'By JOHN S. ELDREDGE, President. 'Executed in presence of— 'SAMUEL CURREY. 'H. S. BARRY.' The testimony taken in the cause pursuant to the interlocutory decree, it is admitted, failed to prove any damage or loss occasioned to the state of Rhode Island, or to any of its citizens or inhabitants, by reason of the failure of the railroad company to comply with the conditions of this bond. The first question for determination on this appeal is that of jurisdiction, raised first by the demurrer and afterwards by the answer of Clark, general treasurer of the state of Rhode Island, on the ground that the suit was in effect brought against a state by citizens of another state, contrary to the eleventh amendment to the constitution of the United States. We are relieved, however, from its consideration by the voluntary appearance of the state in intervening as a claimant of the fund in court. The immunity from suit belonging to a state, which is respected and protected by the constitution within the limits of the judicial power of the United States, is a personal privilege which it may waive at pleasure; so that in a suit, otherwise well brought, in which a state had sufficient interest to entitle it to become a party defendant, its appearance in a court of the United States would be a voluntary submission to its jurisdiction. while, of course, those courts are always open to it as a suitor in controversies between it and citizens of other states. In the present case the state of Rhode Island appeared in the cause and presented and prosecuted a claim to the fund in controversy, and thereby made itself a party to the litigation to the full extent required for its complete determination. It became an actor as well as defendant, as by its intervention the proceeding became one in the nature of an interpleader, in which it became necessary to adjudicate the adverse rights of the state and the appellees to the fund, to which both claimed title. The case differs from that of Georgia v. Jesup, 106 U. S. 462, [1 SUP. CT. REP. 363,] where the state expressly declined to become a party to the suit, and appeared only to protest against the exercise of jurisdiction by the court. The circumstance that the appearance of the state was entered without prejudice to the demurrer of Clark, the general treasurer, does not affect the result. For that demurrer could not reach beyond the question of the right to sue Clark by reason of his official character, which became insignificant when the state made itself a party; and in point of fact the bill was framed to avoid the objection, by charging Clark as a wrong-doer in his individual capacity. For the groundwork of the bill, whether it be regarded as directed against the officer or the state, is that the transaction throughout was void, as ultra vires the corporation. And this presents the next question to be considered. That question arises and is to be determined upon the following statement of facts. The Boston, Hartford & Erie Railroad Company was originally created a corporation by the laws of Connecticut. Its charter conferred authority upon it in these terms: 'Said Boston, Hartford & Erie Railroad Company may purchase * * * the franchise, the whole or any part of the railway or railway property of any railroad company located in whole or in this state, whose line or a portion of whose line of railway, constructed or chartered, now forms part of a railway line from the harbor of Boston, passing through Thompson to Willimantic, and from Providence through Willimantic to Hartford, Waterbury, and thence towards the North river, the purpose of reaching a point at or near Fishkill, in the state of New York; * * * and said Boston, Hartford & Erie Railroad Company may make any lawful contract with any other railway company with which the track of said railroad may connect, in relation to the business or property of the same; and may take lease of any railroad, or may lease their railway to, or may make joint stock with, any connecting railway company in the line of, and forming a necessary part of, and running in the same general direction as, their said route, and between its terminal points.' In pursuance of this authority the Boston, Hartford & Erie Railroad Company purchased the franchises and railroad of the Hartford, Providence & Fishkill Railroad Company. This latter company was a consolidated corporation, deriving its existence and powers from the laws, both of Connecticut and Rhode Island, whose road, as defined in the acts of incorporation, constituted a line within the general description contained in the section from the charter of the Boston, Hartford & Erie Railroad Company, already quoted. By a subsequent act of the legislature of Rhode Island the sale and transfer of the Hartford, Providence & Fishkill Railroad, its property and franchises, to the Boston, Hartford & Erie Railroad Company was ratified and confirmed, so far as said railroad was situated in that state; and it was thereupon further enacted that the 'said Boston, Hartford & Erie Railroad Company, by that name, shall and may have, use, exercise, and enjoy all the rights, privileges, and powers heretofore granted and belonging to said Hartford, Providence & Fishkill Railroad Company and be subject to all the duties and liabilities imposed upon the same by its charter and the general laws of this state.' The Hartford, Providence & Fishkill Railroad Company was, without question, so far as it owned and operated a railroad within the state of Rhode Island, a corporation in and of that state; and the Boston, Hartford & Erie Railroad Company became its legal successor in that state, as owner of its property, and exercising its franchises therein, and became, therefore, in respect to its railroad in Rhode Island, a corporation in and of that state. Thereafter, in January, 1869, the legislature of Rhode Island passed the act out of which the present litigation has grown, entitled 'An act in addition to an act entitled 'An act to ratify and confirm the sale of the Hartford, Providence & Fishkill Railroad to the Boston, Hartford & Erie Railroad Company." In its first section it is enacted as follows: 'The Boston, Hartford & Erie Railroad Company, a corporation created by the general assembly of the state of Connecticut, are hereby authorized and empowered to locate, lay out, and construct a railroad in extension of their line of railroad by them purchased of the Hartford, Providence & Fishkill Railroad Company, commencing at a point in their said purchased railroad at or near their freight depot in the city of Providence; thence running westerly and northerly by a line westerly of the state prison, a little easterly of the Rhode Island Locomotive Works; and thence by nearly a straight line, and crossing or running near to Leonard's Pond, (so called;) and thence passing between the villages of Pawtucket and Lonsdale, and over and above the Providence & Worcester Railroad; thence continuing to the easterly line of the state in or near the village of Valley Falls, there to meet and connect with a railroad extending westerly through North Attleborough, from the direction of Boston, authorized by the common wealth of Massachusetts.' The eighth section of the act is as follows: 'Said railroad, when the same shall have been constructed, shall be managed and protected in all respects according to the provisions of, and be subject to, an act entitled 'An act to incorporate the Providence & Plainfield Railroad Company,' and the several acts in addition to and amendment thereof, and the general laws of the state.' The act thus referred to as the 'Act to incorporate the Providence & Plainfield Railroad Company,' was the charter of the corporation by that name, in the state of Rhode Island, that, by consolidation with a Connecticut company, formed the Hartford, Providence & Fishkill Railroad Company. The twelfth section of the act, recited in the complainant's bill, is as follows: 'This act shall not go into effect unless the said Boston, Hartford & Erie Railroad Company shall, within 90 days from the rising of this general assembly, deposit in the office of the general treasurer their bond, with sureties satisfactory to the governor of this state, in the sum of $100,000, that they will complete their said road before the first day of January, A. D. 1872.' This act of the legislature of Rhode Island was duly accepted by the stockholders of the Boston, Hartford & Erie Railroad Company; the bond required by the twelfth section, as already set out, was executed and delivered; and the certificate of indebtedness, in lieu of sureties, was given by the company and accepted by the state. It is now argued by counsel for the appellees that the party which, in all these transactions, was dealing with the state of Rhode Island, was the Boston, Hartford & Erie Railroad Company, in its character as a corporation of the state of Connecticut; that, as such, it had no power, under the charter granted by that state, to build or own a railroad directly connecting Boston and Providence, nor had it, as such, any capacity to receive a grant of such a franchise; that, consequently, everything done or attempted in that behalf was ultra vires and void. But the Boston, Hartford & Erie Railroad Company was also a corporation of Rhode Island. As such, it owned and operated a railroad within that state, and had received and exercised franchises under its laws, to which it was in all respects subject. It was the assignee of the road and rights connected therewith, formerly belonging to the Hartford, Providence & Fishkill Railroad Company; and it was this corporation, dwelling and acting in Rhode Island, that the legislature, by the act in question, authorized to exercise the additional powers it conferred. If it had had no previous existence as a corporation under the laws of Rhode Island, it would have become such by virtue of the act in question. For although, as a Connecticut corporation, it may have had no capacity to act or exist in Rhode Island for these purposes, and no capacity by virtue of its Connecticut charter to accept and exercise any franchises not contemplated by it, yet the natural persons, who were corporators, might as well be a corporation in Rhode Island as in Connecticut; and, by accepting charters from both states, could well become a corporate body, by the same name and acting through the same organization, officers, and agencies, in each, with such faculties in the two jurisdictions as they might severally confer. The same association of natural persons would thus be constituted into two distinct corporate entities in the two states, acting in each according to the powers locally bestowed, as distinctly as though they had nothing in common either as to name, capital, or membership. Such was in fact the case in regard to this company, so that in Rhode Island it was exclusively a corporation of that state, subject to its laws and competent to do within its territory whatever its legislation might authorize. 'Nor do we see any reason,' as was said by this court, Mr. Justice SWAYNE delivering its opinion, in Railroad Co. v. Harris, 12 Wall. 65-82, 'why one state may not make a corporation of another state, as there organized and conducted, a corporation of its own, quo ad hoc any property within its territorial jurisdiction. That this may be done was distinctly held in Ohio & M. R. Co. v. Wheeler, 1 Black, 297.' The same view was taken in Railway Co. v. Whitton, 13 Wall. 270; in Railroad Co. v. Vance, 96 U. S. 459; and in Memphis & C. R. Co. v. Alabama, ante, 432, decided at the present term. The question of the powers of the Boston, Hartford & Erie Railroad Company, as a corporation in Rhode Island, and of the legal effect of its acts and transactions performed in that state, is to be determined exclusively by the laws of that state, and not by those of Connecticut, which have no force beyond its own territory. It results, therefore, that the doctrine of ultra vires, as here urged by the appellees, has no place in this controversy. It is, however, urged on behalf of the appellees—and this was the ground on which the decree below proceeded—that the obligation required by the statute and given by the company was a bond, in the penal sum of $100,000, conditioned that the company would completely build its road within the period limited, upon which no recovery can be had, except for such damages as may be shown to have resulted to the state of Rhode Island from the breach of its condition; that no damage on that account is proven, it being in fact admitted that none actually resulted; that the certificate of indebtedness and the fund which has arisen from its payment were pledged merely, in lieu of sureties, as collateral security for the satisfaction of the bond; and that, consequently, the claim of the stae of Rhode Island against it having thus failed, that fund reverts to the appellees. The proposition of counsel for the appellees, as stated by them, is that 'from a period at least as early the year 1650 down to the present time, bonds have constituted a distinct class of instruments, the effect of which is always the same, in the same sense that the effect of a conveyance to A. and his heirs is always the same. Such is the rule of equity. Such was the effect of the statutes. Consequently, if in a particular case parties have expressed their obligation in the form of a bond, their liability is thereby determined to be an obligation to perform the condition or pay the damages actually sustained from non-performance thereof;' and, as a statement of the rule, they cite the following passage, 2 Sedgw. Meas. Dam. (7th Ed.) 259, note: 'Of course, in this class of agreements, as in all others, when the contract takes the ordinary form of a penal bond, the sum fixed will invariably be regarded as a penalty; and this might well be put, at the present day, on the ground of intention, as derived from the writing itself, for this form of instrument is in such common use that persons who resort to it must be held to have in view its legal consequences.' While this may be accepted as a sufficiently accurate statement of the general rule, as to bonds with conditions, designed as an indemnity between private persons for non-performance of a collateral agreement, yet, in respect to such cases, it cannot be considered as universally true. 'It is often a doubtful question,' said the supreme judicial court of Massachusetts in Hodges v. King, 7 Metc. 583-587, 'whether the sum stipulated to be paid on the non-performance of a condition is in the nature of a penalty, or is the amount settled by the parties for the purpose of making that certain which would be otherwise uncertain. * * * The bond has indeed a condition; but that is a matter of form and cannot turn that into a penalty which, but for the form, is an agreement to pay a precise sum under certain circumstances.' So that it cannot correctly be said to be true, in all such cases, that the intention to treat the sum named in the bond as a penalty to secure the performance of the condition, and to be discharged on payment of damages arising from non-performance, can be inferred as a rule of law, or a conclusive presumption, from the mere form of the obligation. Originally, at law, in case of breach of the condition of a bond, the amount recoverable was that named in the obligation. So that, if the condition is impossible either in itself or in law, the obligation remains absolute. As, 'if a man be bound in an obligation, etc., with condition that if the obligor do go from the church of St. Peter in Westminster to the church of St. Peter in Rome within three hours, that then the obligation shall be void. The condition is void and impossible, and the obligation standeth good.' So, again, if the condition is against a maxim or rule in law, as, 'if a man be bound with a condition to enfeoff his wife, the condition is void and against law, because it is against the maxim in law; and yet the bond is good.' Co. Lit. 206b. So, where the condition is possible at the date of the instrument and becomes impossible subsequently, the obligation does not become thereby discharged, unless the impossibility of performance was the act of God, or of the law, or of the obligee. Accordingly, it was held by this court in Taylor v. Taintor, 16 Wall. 366, that when a person arrested in one state on a criminal charge, and released under his own and his bail's recognizance that he will appear on a day fixed and abide the order and judgment of the court on process from which he has been arrested, goes into another state, and, while there, is, on the requisition of the governor of a third state, for a crime committed in it, delivered up, and is convicted and imprisoned in such third state, the condition of the recognizance has not become impossible by act of law so as to discharge the bail; 'the law which renders the performance impossible, and therefore excuses failure, must be a law operative in the state when the obligation was assumed, and obligatory in its effects upon her authorities.' The ground, nature, and limits of the jurisdiction of courts of equity to relieve against penalties in such instruments is well stated by Mr. Justice STORY, in this language: 'In short, the general principle now adopted is that, wherever a penalty is inserted merely to secure the performance or enjoyment of a collateral object, the latter is considered as the principal intent of the instrument, and the penalty is deemed only as accessory, and therefore as intended only to secure the due performance thereof or the damage really incurred by the non-performance. In every such case the true test generally, if not universally, by which to ascertain whether relief can or cannot be had in equity, is to consider whether compensation can be made or not. If it cannot be made, then courts of equity will not interfere. If it can be made, then, if the penalty is to secure the mere payment of money, courts of equity will relieve the party upon paying the principal and interest. If it is to secure the performance of some collateral act or undertaking, then courts of equity will retain the bill, and will direct an issue of quantum damnificatus; and when the amount of the damages is ascertained by a jury, upon the trial of such an issue, they will grant relief upon payment of such damages.' Eq. Jur. § 1314. And Mr. Adams, in his Treatise on Equity, (6th Am. Ed.) 107, says, on the same subject: 'The equity for relief against enforcement of penalties originates in the rule which formerly prevailed at law, that, on breach of a contract secured by penalty, the full penalty might be enforced, without regard to the damage sustained. The court of chancery, in treating contracts as matters for specific performance, was naturally led to the conclusion that the annexation of a penalty did not alter their character; and, in accordance with this view, would not, on the one hand, permit the contracting party to evade performace by paying the penalty; and, on the other hand, would restrain proceedings to enforce the penalty on a subsequent performance of the contract itself, viz., in the case of a debt, on payment of principal, interest, and costs; or in that of any other contract, on reimbursement of the actual damage sustained.' It has accordingly been uniformly held, in cases too numerous for citation, that courts of equity will not interfere in cases of forfeiture for the breach of covenants and conditions where there cannot be any just compensation decreed for the breach; for, as was said by Lord Chancellor MACCLESFIELD, in Peachy v. Duke of Somerset, 1 Strange, 447; S. C. Prec. Ch. 568; 2 Eq. Cas. Abr. 227, 'it is the recompense that gives this court a handle to grant relief.' The application of this principle becomes more manifest in cases where a public interest or policy supervenes, as where, for non-compliance by stockholders in corporations engaged in undertakings of a public nature, with the terms of payment of installments due on account of their shares, by which a forfeiture of the stock and of all previous payments thereon has been incurred and declared, the courts refuse to grant relief. Sparks v. Proprietors of Liverpool Water-works, 13 Ves. 428; Prendergast v. Turton, 1 Younge & C. Ch. 98; Naylor v. South Devon Ry. Co. 1 De G. & S. 32; Sudlow v. Dutch Rhenish Ry. Co. 21 Beav. 43. In the case of Sparks v. Proprietors of Liverpool Water-works, 13 Ves. 433, Sir WM. GRANT, M. R., said: 'The parties might contract upon any terms thought fit, and might impose terms as arbitrary as they pleased. It is essential to such transactions. This struck me as not like the case of individuals. If this species of equity is open to parties engaged in these undertakings, they could not be car reid on. * * * Why is not this equity open to contractors for government loans? Why may not they come here to be relieved when they have failed in making their deposit? And if they could have relief, how could gov ernment go on? It would be just as difficult for these undertakings to go on. If compensation cannot be effectually made, it ought not to be attempted.' Accordingly, where any penalty or forfeiture is imposed by statute upon the doing or omission of a certain act, there courts of equity will not interfere to mitigate the penalty or forfeiture, if incurred, for it would be in contravention of the direct expression of the legislative will. Story, Eq. Jur. § 1326. Lord Chancellor MACCLESFIELD said, in Peachy v. Duke of Somerset, 1 Strange, 477: 'Cases of agreements and conditions of the party and of the law are certainly to be distinguished. You can never say the law has determined hardly, but you may that the party has made a hard bargain.' In Powell v. Redfield, 4 Blatchf. C.C. 45, an application was made in equity to restrain suits upon a bond given in pursuance of the revenue laws of the United States, which was denied on the ground that a court of equity had no right to interfere, and, by injunction or decree, to virtually repeal the express provisions of a positive statute. or defeat their operation in the particular case. In Benson v. Gibson, 3 Atk. 395, Lord HARDWICK said: 'Nor is it like the case of bonds given as a security not to defraud the revenue, because there, where a person is guilty of a breach, it is considered in law as a crime, and this court will not relieve for that reason.' The case of Treasurer v. Patten, 1 Root, 260, was an action for the penalty of a bond given to oblige the defendant to observe the laws respecting excise, in which there was a verdict for the plaintiff and the £200 penalty. Defendant moved the court, says the report, to chancer said bond. 'By the Court. There is no power short of the legislature can do it; for it is the sum prescribed by an act of the legislature.' So in Keating v. Sparrow, 1 Ball & B. 367, the Lord Chancellor MANNERS said: 'It has been argued on the part of the plaintiff that this court leans against forfeiture, if the party can be compensated; and that he can in this case, where interest and septennial fines may be given to the landlord. That principle is applicable to cases of contract between the parties, but not to the provisions of an act of parliament or conditions in law.' The fact that the obligation is in the form of a bond to the state does not make its penalty less a statutory forfeiture, and so outside the jurisdiction of a court of equity. In the case of U. S. v. Montell, Taney, C. C. 47, it was held that the sum secured by a bond with sureties, under the act of congress of December 31, 1792, c. 45, § 7, conditioned that the registry of a vessel should be used solely for the vessel for which it is granted, and should not be disposed of to any person whatsoever; and if the vessel be lost, or prevented by disaster from returning to the port, and the registry shall be preserved, or if the vessel be sold, that the registry shall be delivered up to the collector, is a penalty or forfeiture inflicted by the sovereign power for a breach of its laws, not a liquidated amount of damages due under a contract, but a fixed and certain punishment for an offense, and not the less so because security is taken before the offense is committed in order to secure the payment of the fine if the law should be vio lated. Chief Justice TANEY, in his opinion, said: 'Penalties and forfeitures imposed by statute are not usually provided for by bond and security given in advance. The sum recovered from Montell is recovered upon a contract; the action was brought upon a contract; and was not and could not have been brought in any of those forms which are usually necessary for the recovery of fines or forfeitures imposed by law. Yet this sum was, in truth, forfeited by Montell, by reason of his violation of a duty imposed by the act of congress; it was a specific penalty upon the owner and master, for the commission of a particular offense against the policy of that law. And although the amount was secured by bond given for the performance of the duty, yet this duty was a part of the same policy with other duties mentioned in the act and for which other penalties are inflicted. * * * 'It certainly is not to be regarded as a bond with a collateral condition, in which the jury are to assess the damages which the United States shall prove that they have sustained; for, according to that construction, the amount of damages would not depend upon the amount of the penalty described in the section, which is graduated according to the size of the vessel, but would depend upon the discretion of different juries, and larger damages might be given where the penalty was only $400, than in a case where the penalty was $2,000. 'This, obviously, is not the intention of the law; and the United States are entitled to recover the whole sum, for which the party is bound, if any one of the conditions are broken. Besides, how could the United States prove any particular amount of damages to have been sustained by them in a suit on this bond? What do they lose? It would be difficult, we think, by any course of proof or any process of reasoning, to show that the United States had sustained any particular amount of damages in a case of this description, or to adopt any rule by which the damages could be measured by a jury, or be liquidated by agreement between the parties. 'The sum, for which the parties are to become bound, is, manifestly, a penalty or forfeiture, inflicted by the sovereign power for a breach of its laws. 'It is not a liquidated amount of damages due upon a contract, but a fixed and certain punishment for an offense. And it is not the less a penalty and a punishment because security is taken before the offense is committed, in order to secure the payment of the fine if the law should be violated.' Recurring now to the particular circumstances of the present case, with a view to the application of these principles and decisions, we are satisfied that the proper solution of the question now under examination is to be found in two principal considerations. The first of these is that it was not intended by the parties, the state of Rhode Island on the one hand, and the Boston, Hartford & Erie Railroad Company on the other, that the obligation given and accepted should be for an indemnity against any loss or damage expected to be suffered by the state, in the event that the railroad company should fail to build the railroad as required. It is found as a fact that no such loss or damage has in fact ensued. It is equally plain that none could possibly have arisen. The security is not to be extended to any supposed damage to private interests legally affected by the process of constructing the work. All damage of this kind to private persons was carefully provided for in other parts of the act. As to the state itself, the real party to the arrangement and contract, it could gain nothing in its political and sovereign character by the construction of the road; it could lose nothing by the default. If it could be supposed as possible that the state had in view the public interests of commerce and trade in the construction of the proposed railroad, and meant to provide for loss and damage to them by reason of its failure, the obvious answer is that no computation and assessment of actual damages on that account would be practicable, leaving as the alternative that the state, in fixing the penalty of the bond in the statute, had established its own measure of the public loss. The question of damages and compensation was not, because it could not have been, in contemplation of the parties. There was no room for supposing that there could be any. To assume that the statute required this bond and security in this sense, in full view of the legal conclusion which it is said necessarily flows from its form, and that in the event contemplated, of the failure to build the road, all that remained to be done was that the state should hand back canceled the obligation and security it had been at such pains to exact, is to put upon the transaction an interpretation altogether inadmissible. It would have been, upon such an assumption, a vain and senseless thing, and however private persons may be sometimes supposed to act improvidently, we are not to put such constructions, when it is legally possible to avoid them, upon the deliberate and solemn acts and transactions of a sovereign power, acting through the forms of legislation. The conclusion, in our opinion, cannot be resisted that the intention of the parties in the transaction in question was that if the railroad should not be built within the time limited, the corporation should pay to the state, absolutely and for its own use, the sum named in the bond and secured by the deposited certificate of indebtedness. The supposition is not open that the penalty was prescribed merely in terrorem, to secure punctuality in performance, with the reserved intention of permitting subsequent performance to condone the default, for a distinct section of the statute (section 9) declares that in case of failure to complete the road within the time limited, the act itself should be void and of no effect. In the second place, we think that the sum named in the statute is imposed by it as a statutory penalty for the non-performance of a statutory duty. The obligation required is that the railroad company shall give a bond, with satisfactory security, that they will obey the law; that they will complete their road as required by it. The language evidently means that, in case they fail to do so, they shall forfeit and pay the sum named; and, in order to insure its payment, additional parties to the bond, as sureties, are required. It is admitted that if it does not mean this it does not mean anything, and we have already said that we are not at liberty to adopt that alternative. We must construe it ut res magis valeat quam pereat; and the rule of strictness, in the construction of penal statutes, does not require an interpretation which defeats the very object of the law. The state of Rhode Island was dealing with one of its own corporations, and it had perfect right to act upon its own policy and prescribe its own terms, as conditions of powers and privileges sought from its authority. For these reasons the decree of the circuit court is reversed, and the cause is remanded, with instructions to enter a decree in favor of the state of Rhode Island for the sum of $100,000, payable out of the fund in court, with so much interest thereon, if any, as has accrued on that sum since the first day of January, 1872, which is the date when the amount became due. And it is accordingly so ordered.
107.US.581	The Memphis and Charleston Railroad Company is made by the statutes of Alabama an Alabama corporation; and, although previously incorporated in Tennessee also, cannot remove into the Circuit Court of the United States a suit brought against it in Alabama by a citizen of Alabama.	This action was brought by the state of Alabama, for the use of Jackson county, in a court of that state, against a railroad corporation whose road passed through that state and county, to recover the amount of a county tax assessed upon its property. It was removed into the circuit court of the United States for the northern district of Alabama, upon the petition of the corporation, alleging that it was a citizen of the state of Tennessee and the plaintiff was a citizen of Alabama. Upon the motion of the plaintiff, and the introduction in evidence of the acts of the legislatures of Tennessee, Alabama, and Mississippi, relating to the defendant corporation, and of its organization under those acts, the circuit court, following its own decision in Copeland v. Memphis & C. R. Co. 3 Woods, 651, remanded the case to the state court, upon the ground that the defendant was a corporation chartered by the state of Alabama; and from the order remanding the case the defendant appealed. The question decided by the circuit court, and argued by the appellant, depends upon the provisions of the statutes of Alabama. The first act of the legislature of Alabama upon the subject, passed on the seventh of January, 1850, is entitled 'An act to incorporate the Memphis & Charleston Railroad Company,' and has this preamble: 'Whereas an act was passed by the state of Tennessee, bearing date the second day of February, 1846, and the same was amended by an act of the same state, dated February 4, 1848, for the formation of a company, under the name and style of the Memphis & Charleston Railroad Company, for the purpose of establishing a communication by railroad between Memphis, Tennessee, and Charleston, South Carolina; and whereas it is believed that the most eligible route for said road is through a portion of this state; and whereas it is also believed that great and lasting benefits will accrue to the inhabitants of this state from said improvement; therefore * * *' It then proceeds, in the first section, to provide that 'the said company shall have the right of way through the territory of this state to construct their road' between certain points named, 'and said company shall have and enjoy all the rights, powers, and privileges granted to them by the act of incorporation above mentioned, and shall be subject to all the liabilities and restrictions imposed by the same, together with the following requirements.' The second section provides that 'in the event said road shall be located through Tuscumbia, it shall be the duty of the company to construct a branch to Florence; and in the event said road shall pass on the north side of the Tennessee river near Florence, it shall be the duty of said company to construct a branch to Tuscumbia, provided that the subscription in the town or county applying for such branch shall be fully sufficient to pay the cost of the same.' The third section provides that 'the said company shall be authorized and required to open books for the subscription of stock in the capital of said corporation in the state of Alabama, so as to afford the citizens thereof an opportunity to take stock to the amount of $1,500,000 of the capital of said company; provided that if said $1,500,000 be not subscribed in Alabama within 90 days after the books are opened, then it may be taken elsewhere.' The fourth section provides that 'the said company shall, at the first meeting of the stockholders, designate a time when, and a place or places in North Alabama where, for the convenience of the citizens of the state who may be stockholders, the subsequent election for directors shall be held, and shall give notice thereof in one or more newspapers published in North Alabama; and said elections shall be held at the same time both in this state and in Tennessee.' The fifth section provides that 'the moneys subscribed by the citizens of Alabama, whether by the state, counties, corporations, or individuals, shall first be applied to the construction of the road within the limits of the state of Alabama, and said moneys shall be placed in some safe depository in North Alabama until required for use, provided that nothing in this section shall be so construed as to prevent the company from putting under contract the whole road whenever in their estimation a sufficient amount of funds shall have been obtained.' The sixth section provides that 'said company shall not charge for the transportation of persons or property any higher rates on one part then on another of said road; but the tolls shall be equal and uniform on every part of said road for articles of the same description, whether passing in one direction or the other.' So far, it is not made quite clear whether the words 'said company,' as used in the body of the act, refer to the company which the act in its title purports to incorporate, or to the company, mentioned in the preamble, for the formation of which acts had been passed by the state of Tennessee. But that these words do not refer to the Tennessee corporation, and are meant to designate an Alabama corporation, is made plain by the repeated use of the words 'the company hereby incorporated' in the seventh section, which is as follows: 'The company hereby incorporated shall not locate their road on the track of the Tennessee Valley Railroad, nor of any other railroad which has heretofore been chartered by this state, provided companies have been organized under the same, without first procuring the assent by agreement with said companies; but it shall be lawful for the company hereby incorporated to acquire by purchase, gift, release, or otherwise, from any other company, all the rights, privileges, and immunities of said company, and possess and enjoy the same as fully as they were or could be possessed or enjoyed by the company making the transfer.' The two other sections of the act also seem to regard the corporation as created as well as controlled by the state of Alabama; for the eighth section provides that 'any railroad company now chartered or hereafter to be chartered in this state shall have the right to connect their road with the road authorized by this act;' and the ninth section provides that 'nothing contained in this act shall prevent the state of Alabama from the levying and collecting such taxes on the property of said company within this state as shall by the general assembly of the state be assessed on the property of other railroads in this state; nor shall anything therein be construed so as to prevent the chartering and building other railroads in the state coming within any distance whatever of said road, anything in said law of Tennessee to the contrary notwithstanding.' St. Ala. 1849-50, c. 128. The whole act, taken together, manifests the understanding and intention of the legislature of Alabama that the corporation, which was thereby granted a right of way to construct through this state a railroad, with which any railroad company chartered or to be chartered in this state should have the right to connect its road; and which was required to construct a branch railroad in this state, to open books for subscriptions of stock to a certain amount in this state, to apply the moneys here subscribed to the construction of the road within this state, and to hold elections in this state; was and should be in law a corporation of the state of Alabama, although having one and the same organization with the corporation of the same name previously established by the legislature of Tennessee. The subsequent acts of the state of Alabama point in the same direction, and each speaks of the company as incorporated or chartered by the legislature of Alabama. The act of the twelfth of February, 1850, is entitled 'An act to amend an act entitled 'An act to incorporate the Memphis & Charleston Railroad Company,' approved January 7, 1850,' and provides that if 'the subscribers to the capital stock of the Memphis & Charleston Railroad in the state of Alabama, from a failure to obtain the necessary legislation from the states of Tennessee and Mississippi, or from any other cause, deem it expedient to form a separate and independent organization, then and in that event they are hereby vested with full power and authority to do the same; and said company so organized shall be known by the name and style of the Mississippi & Atlantic Railroad Company, and shall have and enjoy all the rights, privileges, and powers heretofore granted or intended to be granted, and be subject to all the limitations, restrictions, and liabilities heretofore imposed or intended to be imposed, in the several acts incorporating the Memphis & Charleston Railroad Company.' St. Ala. 1849-50, c. 129. The act of the seventh of February, 1856, which, as mentioned in its title and provided in its first section, grants to 'the Memphis and Charleston Railroad Company' a right of way for an extension of its road through the territory of this state, expressly provides in the second section that 'said right of way is granted upon the same terms, restrictions, liabilities, and conditions that the right of way is granted to said company under the charter granted to said company by the general assembly of this state, and approved seventh January, 1850.' St. Ala. 1855-56, c. 302. The defendant, being a corporation of the state of Alabama, has no existence in this state as a legal entity or person, except under and by force of its incorporation by this state; and, although also incorporated in the state of Tennessee, must, as to all its doings within the state of Alabama, be considered a citizen of Alabama, which cannot sue or be sued by another citizen of Alabama in the courts of the United States. Ohio & M. R. Co. v. Wheeler, 1 Black, 286; Railway Co. v. Whitton, 13 Wall. 270, 283. This view being conclusive against the claim of the appellant, it is unnecessary to consider whether the action, brought by the state of Alabama for the use of one of its counties can be considered as a suit brought by a citizen of the state of Alabama, within the meaning of the constitution and laws of the United States. Judgment affirmed.
108.US.24	1. A decree is final, for the purposes of appeal, when it terminates the litigation between the parties on the merits, and leaves nothing to be done but enforce by execution what has been determined. 2. Matters relating to the administration of the cause, and accounts to be settled in accordance with the principles fixed by the decree are incidents of the main litigation which may be settled by supplemental order after final decree.	As we have had occasion to say at the present term, in Bostwick v. Brinkerhoff, 1 SUP. CT. REP. 15, and Grant v. Phoenix Ins. Co. Id. 414, a decree is final, for the purposes of an appeal to this court, when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined. Under this rule we think the present decree is final. The suit was brought to compel the railway company to do the express company's business. The controversy was about the right of the express company to require this to be done on the payment of lawful charges. It was no part of the object of the suit to have it definitely settled what these charges should be for all time. The point was to establish the liability of the railway company to carry. The decree requires the carriage, and fixes the compensation to be paid. It adjudges costs against the railway company, and awards execution. Nothing more remains to be done by the court to dispose of the case. Inasmuch as the rates properly chargeable for transportation vary according to the circumstances, and what was reasonable when the decree was rendered may not always continue to be so, leave is given the parties to apply for a modification of what has been ordered in that particular, if they, or either of them, shall desire to do so. In effect, the decree requires the railway company to carry for reasonable rates, and fixes for the time being the maximum of what will be reasonable. The controversy which the express company has had referred to the master, about the compensation to be paid for the transportation during the pendency of the suit, does not enter into the merits of the case. All such matters relate to the administration of the cause, and the accounts to be settled under the present order are of the same general character as those of a receiver who holds property awaiting the final disposition of a suit. They are incidents of the main litigation, but not necessarily a part of it. The supplemental order, made after the decree, relates only to the settlement of the accounts which accrued pending the suit. The motion to dismiss is denied.
108.US.514	The Civil Code of Louisiana provided, in respect of tutors of minors, as follows: "The property of the tutor is tacitly mortgaged in favor of the minor from the day of his appointment as tutor, as security for his administration, and for the responsibility which results from it." The Constitution of Louisiana subsequently adopted (in April, 1868), provided as follows: " No mortgage or privilege shall hereafter affect third parties, unless recorded in the parish where the property to be affected is situated. The tacit mortgages and privileges now existing in this State shall cease to have effect against third persons after the 1st January, 1870, unless duly recorded. The general assembly shall provide by law for the registration of all mortgages and privileges." The legislature of Louisiana, on the 8th LMarch, 1869, enacted the necessary legislation to carry this provision of the State Constitution into effect: Teld, 1. That these provisions of the Constitution and of the statute requiring owners of tacit mortgages to record them for the protection of innocent persons dealing with the tutor, and giving ample time and opportunity to do what was required, and what was eminently just to everybody, did not impair the obligation of contracts. 2. That these provisions are in the nature of statutes of limitations. Previous decisions of the court respecting limitations referred to and approved. 3. That the fact that the plaintiff was a minor when the law went into operation makes no difference. In the absence of a provision in the Constitution of the United States giving minors special rights, it is within the legislative competency of a State to make exceptions in their favor or not, and the act in question made no exception.	This is a writ of error to the supreme court of Louisiana. In a proceeding in the state court of Louisiana the plaintiff in error recovered a judgment against the defendant in error, as executrix of the succession of her husband, S. W. Vance, for the sum of about $75,000, due from him to plaintiff in error as her natural tutor. The sum thus found due was the result of an accounting concerning this tutorship during the period between October 15, 1859, and May 18, 1877. Article 354 of the Civil Code of Louisiana, in force when this tutorship began, says: 'The property of the tutor is tacitly mortgaged in favor of the minor, from the day of the appointment of the tutor, as security for his administration, and for the responsibility which results from it.' The court of probate, which adjusted this account, decreed in favor of the plaintiff in error that her mortgage privilege for the sums and interest found due her be recognized on all the lands owned by Samuel W. Vance, the deceased tutor, on and after the fifteenth day of October, 1859. From this branch of the decree certain creditors of the deceased tutor, who had been permitted to intervene, appealed to the supreme court of the state, and that court reversed the decree of the probate court by deciding against the existence of this mortgage privilege. The ground on which this privilege was denied is found in article 123 of the constitution of the state of Louisiana, adopted in April, 1868, which is as follows: 'The general assembly shall provide for the protection of the rights of married women to their dotal and paraphernal property, and for the registration of the same; but no mortgage or privilege shall hereafter affect third parties, unless recorded in the parish where the property to be affected is situated. The tacit mortgages and privileges now existing in this state shall cease to have effect against third persons after the first of January, 1870, unless duly recorded. The general assembly shall provide by law for the registration of all mortgages and privileges.' The legislature did pass the act of March 8, 1869, No. 95: 'To carry into effect article 123 of the constitution, and to provide for recording all mortgages and privileges.' Session Acts 1869, p. 114. Section 11 reads: 'That it shall be the duty of the clerks of the district courts of the several parishes in this state to make out an abstract of the inventory of the property of all minors whose tutors have not been required by law to give bond to their tutorship, such abstract to describe the real property, and give the full amount of the appraisement of all the property, both real and personal, and rights and credits, and to deposit such abstracts with the recorders of the several parishes, whose duty it shall be to record the same as soon as received in the mortgage-book of their parish; such abstracts to be made out and deposited with the recorders by the first day of December, 1869, and recorded by the first day of January, 1870. This section to apply only to tutorship granted before the passage of this act, and any failure of the clerks or recorders to perform the service required by this section shall subject them to any damages that such failure may cause any person, and shall further subject them to a fine of not less than one hundred nor more than one thousand dollars, for the benefit of the public school fund, to be recovered by the district attorney or district attorney pro tem. before any court of competent jurisdiction. Such abstracts, when recorded in any parish in which the tutor owns mortgageable property, shall constitute a mortgage on the said tutor's property until the final settlement and discharge of the tutor. The fees for making out and recording such abstracts shall be the same as the fees prescribed for the clerks and recorders for other similar services, and shall be paid on demand by the tutor, or, if the minors have arrived at the age of majority, by them; and if no responsible person can be found, then any property owned by the minors for whose benefit such services were performed, shall be sold to pay the same; and if no person or property be found to pay the same, then the parish shall pay the same, and have recourse against the person or property of any person for whose benefit the services were performed.' The case comes to this court on the proposition that, as thus construed, the constitution and statute of Louisiana impair the obligation of her contract with her tutor concerning his duty to account for her estate in his hands, and also violate the provision of section 1, art. 14, of the amendments to the constitution of the United States. The view of the supreme court of Louisiana on this matter is very clearly presented in the following extract from its opinion in the case: 'Waiving the question (which is certainly a debatable one) whether or not the obligations and mortgages existing against the natural tutor in favor of his ward arise or spring from contracts, we think the plaintiff's argument untenable, in that it assumes that article 123 destroyed or impaired plaintiff's mortgage obligation in the sense of the constitution of the United States. Had the article simply declared the abolition and extinction eo instanti of all tacit mortgages, there would have been the case presented by plaintiff's argument. But it did nothing of the sort. It fixed a future day, reasonably distant, and declared that such mortgages would perempt, prescribe, or cease to exist as to third persons unless recorded by that date. 'It is in its nature a statute of limitations. The right of the state to prescribe the time within which existing rights shall be prosecuted, and the means by and conditions on which they may be continued in force, is, we think, undoubted. Otherwise, where no term of prescription exists at the inception of a contract, it would continue in perpetuity, and all laws fixing a limitation upon it would be abortive. Now, it is elementary that the state may establish, alter, lengthen, or shorten the period of prescription of existing rights, provided that a reasonable time be given in future for complying with the statute.' See Cooley, Const. Lim. 376; Story, Coust. p. 236, § 1385. These observations seem to us eminently just. The strong current of modern legislation and judicial opinion is against the enforcement of secret liens on property. And, in regard to real property, every state in the Union has enacted statutes holding them void against subsequent creditors and purchasers, unless they have actual notice of their existence, or such constructive notice as arises from registration. The constitution of Louisiana introduced this principle, and did it with due regard to existing contracts. It did not change, defeat, or impair the obligation of the tutor to perform that contract. It did not take away or destroy the security which existed by way of lien on the tutor's property, nor as between the tutor and the ward did it make any change whatever. But it said to the latter: 'You have a secret lien, hidden from persons who are dealing every day with the tutor on the faith of this property, and in ignorance of your rights. We provide you a way of making those rights known by a public registration of them which all persons may examine, and of which all must take notice at their peril. We make it the duty of officers having charge of the offices where the evidence of your claim exists to make this registration. We make it your duty also to have it done. We give you a reasonable time after this constitution is passed and after the enabling statute is passed to have this registration made. If it is not done within that time your debt remains a valid debt, your mortgage remains a valid mortgage, but it binds no one who acquires rights after that in ignorance of your mortgage, because you have not given the notice which the law required you to give.' We think that the law, in requiring of the owner of this tacit mortgage, for the protection of innocent persons dealing with the obligor, to do this much to secure his own right, and protect those in ignorance of those rights, did not impair the obligation of the contract, since it gave ample time and opportunity to do what was required, and what was eminently just to everybody. The authorities in support of this view are ample. Perhaps the case most directly in point is one in this court, namely, Curtis v. Whitney, 13 Wall. 68. That was a case like this, arising out of a statutory contract to which the legislature, by a law enacted after it was made, added, as in this, the duty of giving notice. Curtis purchased at a public sale for delinquent taxes a tract of land, and received from the proper officer a certificate, which by law authorized her to obtain a deed at the end of three years, if the land was not redeemed, by paying the amount of the bid and interest. After this sale, and before the end of the three years, the state passed an act that, where any person was found in the actual occupancy of the land, the deed should not issue unless a written notice had been served on the owner of the land or on the occupant, by the holder of the tax certificate, at least three months prior thereto, and it was made applicable to past sales as well as future. Mrs. Curtis applied for and obtained her deed without giving this notice, and when she brought suit to quiet the title so acquired, the supreme court of Wisconsin decided her deed void for want of it. The case was brought to this court on the ground that the statute of Wisconsin requiring this notice impaired the obligation of the contract evidenced by the certificate of sale; but this court held that it did not. That the case is very like the one before us in obvious. The court said: 'That the statute is not void because it is retrospective has been repeatedly held by this court, and the feature of the act of 1867, which makes it applicable to certificates already issued for tax sales, does not of itself conflict with the constitution of the United States. Nor does every statute which affects the value of a contract impair its obligations. It is one of the contingencies to which parties look now in making a large class of contracts, that they may be affected in many ways by state and by national legislation. For such legislation demanded by the public good, however it may retroact on contracts previously made, and enhance the cost and difficulty of performance, or diminish the value of such performance to the other party, there is no restraint in the federal constitution so long as the obligation of performance remains in full force. In the case before us the right of the plaintiff is not taken away, nor the time when she would be entitled to it postponed. * * * The right to the money or the land remains, and can be enforced whenever the party gives the requisite legal notice. The authority of the legislature to frame rules by which the right of redemption may be rendered effectual, cannot be questioned, and among the most appropriate and least burdensome of these is the notice required by the statute.' In the case of Louisiana v. New Orleans, 102 U. S. 202, the supreme court of the state refused the relator a writ of mandamus to enforce a levy of taxes to pay a judgment against the city, on which an execution had been issued and a* return of nulla bona made. The supreme court denied the writ because the relator had not registered his judgment with the proper officer of the city, under a statute which required such registry in order that proper levy of taxes might be made and judgments paid in their proper order. The case was brought to this court on the proposition that the statute which was enacted after relator's contract was made was an impairment of its obligation within the meaning of the constitution of the United States. But this court held that the registry of these judgments was 'a convenient mode of informing the city authorities of the extent of the judgments, and that they have become executory, to the end that proper steps may be taken for their payment. It does not impair existing remedies.' In Jackson v. Lamphire, 3 Pet. 289, court said: 'It is within the undoubted power of state legislatures to pass recording acts, by which the elder grantee shall be postponed to a younger, if the prior deed is not recorded within the limited time; and the power is the same whether the deed is dated before or after the recording act. Though the effect of such a law is to render the prior deed fraudulent and void against a subsequent purchaser, it is not a law impairing the obligation of contracts. Such, too, is the power to pass acts of limitation, and their effect. Reason and sound policy have led to the general adoption of laws of both descriptions, and their validity cannot be questioned.' And this language is reproduced with approval in the case of Curtis v. Whitney, above referred to. The decisions in regard to the statute of limitation are full to the same purpose, and, as the supreme court of Louisiana says, this is a statute of limitation, giving a reasonable time within which the holder of one of these secret liens may make it public, otherwise it will be void against subsequent purchasers and creditors without notice. The case of Terry v. Anderson, 95 U. S. 628, presents, in the terse language of the chief justice of this court, both the rule, the reason for it, and the limitation which the constitutional provision implies. This court, he says, 'has often decided that statutes of limitation affecting existing rights are not unconstitutional, if a reasonable time is given for the enforcement of the action before the bar takes effect.' He adds, in reference to the case the before the court, which was a South Carolina statute of limitation, passed since the civil war: 'The business interests of the entire people of the state had been overwhelmed by a calamity common to all. Society demanded that extraordinary efforts be made to get rid of old embarrassments, and permit a reorganization upon the basis of the new order of things. This clearly presented a case for legislative interference within the just inferences of constitutional limitations. For this purpose the obligations of old contracts could not be impaired, but their prompt enforcement could be insisted upon, or an abandonment claimed. That, as we think, has been done here, and no more.' And Jackson v. Lamphire is again cited with approval. The same principle is asserted in the case of Koshkonong v. Burton, at the last term, 104 U. S. 668. Other cases in this court are Hawkins v. Barney's Lessee, 5 Pet. 457; Sohn v. Waterson, 17 Wall. 596; Sturges v. Crowninshield, 4 Wheat. 122. It is urged that because the plaintiff in error was a minor when this law went into operation, it cannot affect her rights. But the constitution of the United States, to which appeal is made in this case, gives to minors no special rights beyond others, and it was within the legislative competency of the state of Louisiana to make exception in their favor or not. The exemptions from the operation of statutes of limitations, usually accorded to infants and married women, do not rest upon any general doctrine of the law that they cannot be subjected to their action, but in every instance upon express language in those statutes giving them time, after majority or after cessation of coverture, to assert their rights. No such provision is made here for such exception, but, in place of it, the legislature has made it the duty of the proper officer of the court to act for them. It was also the duty of the under tutor appointed in this case. If the foregoing considerations be sound, they answer also effectually the suggestion in regard to the fourteenth amendment of the constitution of the United States. We see no error in the record of the case of which this court has jurisdiction, and the decree of the supreme court of Louisiana is affirmed.
108.US.352	1. A ship, towed by a steam tug down a river, came to anchor in the evening, and the tug was lashed to her side. In the night, no watch having been set, a passenger on board of her was awakened by a smell of smoke arising from a fire, which had broken out in part of the cargo stowed in the poop, and which endangered the ship and cargo. He gave the alarm to the officers and crews of the ship and of the tug; and he and the officers, crew and passengers of the tug, working together, and by means of a steam pump and hose upon the tug, and unaided by the officers and crew of the ship, put out the fire in twenty minutes: Held, That this was a salvage service, and that the passenger on board the ship, as well as the owner, officers, crew and passengers of the tug, might share in the salvage. 2. Under the act of Congress of 16th February, 1875, c. 77, a decree of salvage by the circuit court is not to be altered by this court for excess in the amount awarded, unless the excess is so great that, upon any reasonable view of the facts found, the award cannot be justified by the rules of law applicable to the case.	This is a libel in admiralty by the owner, master, and crew of the steam tow-boat Joseph Cooper, Jr., for salvage on the ship Connemara and cargo. Louis Wurtz and Henry Holser, passengers on the tow-boat, and John Evers, a passenger on the ship, were permitted to file intervening libels. The value of the ship and cargo was agreed to be $236,637. The district court awarded as salvage 8 per cent. on that value, or $18,930.96, and the owners and claimants of the ship appealed to the circuit court. The circuit court found the following facts: On the fifteenth of April, 1879, the ship Connemara, being in the port of New Orleans, with her cargo on board, consisting chiefly of pressed cotton, and bound on a voyage for Liverpool, England, engaged the tow-boat Joseph Cooper, Jr., to tow her to the mouth of the Mississippi river, and was by her towed about 26 miles down the river, and came to anchor about 8 o'clock in the evening opposite the Belair plantation. About 11 o'clock at night the ship, with the tow-boat lashed to her side, was lying with her bow to the current and her stern to the wind, which was blowing stiffly, no watch had been set,——and the two mates and the boatswain set,—and the two mates and the boatswain fluence of liquor, but the captain and the rest of the crew were sober. Evers, a passenger on board the ship, being then asleep in the second mate's cabin, was awakened by a smoke of burning cotton, sprang from his berth, and gave the alarm to the officers and crew of the ship and of the tow-boat. The fire was not in the hold, but in the poop above the main deck, and near the door, which could be opened by raising the latch; and the fire, when discovered, was confined to three bales of cotton, a spare sail, and two coils of tarred rope. There were 127 bales of cotton stowed in the poop. The fire was not caused by the fault of the tow-boat, or by any defect in her equipment or management. The tow-boat had on her deck a pump worked by steam, and hose long enough to reach the fire on the ship. As soon as the alarm was given, and by the exertions of the tow-boat's officers and crew, of her two passengers and of Evers, the hose was laid from the pump to the deck of the ship, and by their use of this pump and hose the fire was put out in 15 or 20 minutes, without any damage to ship or cargo, beyond the burning of the sail and the two coils of rope, the partial burning of the three bales of cotton, and the charring of a part of the upper deck or roof of the poop. In extinguishing the fire there was no serious risk of loss or damage to the tow-boat, or of injury to life or limb of any of the salvors. No efficient effort was made by the officers or the crew of the ship to extinguish the fire. The ship had on her deck, within 15 feet of the fire, two tanks of water, holding 400 gallons each, one of which was full and the other half full, with six buckets near the fire and seven above, and a pump by which water could have been pumped upon the upper deck. At the time of the fire the steam-tug Harry Wright was lying about a quarter of a mile off; and there was a telegraph station on the Belair plantation, from which a dispatch could have been sent to the city of New Orleans for aid to put out the fire, and efficient aid might have reached the ship from the city in two hours and a half after notice. The agreed value, as aforesaid, of the Connemara and cargo, and the names and monthly wages of each of the officers and crew of the Joseph Cooper, Jr., were also stated in the findings of fact. From these facts the circuit court made and stated the following as conclusions of law: (1) The services rendered by the tow-boat Joseph Cooper, Jr., her officers and crew, and the three passengers, Wurtz, Holzer, and Evers, in the extinguishment of the fire on board the ship Connemara, were a salvage service; (2) a gross salvage on the ship and cargo of $14,198, or 6 per cent. on the value thereof, should be allowed; (3) this salvage should be equally divided, half to the owner of the tow-boat, and half to the salvors; (4) the moiety allowed to the salvors should be distributed among them in proportion to their monthly wages, the passengers Wurtz and Evers to rank as pilots, and Holser as a steersman. A decree was entered accordingly, and the claimants appealed to this court. A motion to dismiss the appeal for want of jurisdiction was made and overruled at October term, 1880. The Connemara, 103 U. S. 754. The errors assigned are: first, that the facts found do not constitute a salvage service; second, that, if a salvage service, it is salvage of the lowest grade, and the amount allowed is exorbitant; third, that the amount allowed to John Evers, he being a passenger on board the Connemara, is not warranted by law. Neither of the grounds assigned will justify this court in reversing the decree. If the fire, which had made such headway as to wholly consume the two coils of tarred rope and the spare sail, and to partly destroy three bales of the cotton stowed in the poop, had not been promptly discovered and extinguished, there was imminent danger that it would extend to the rest of that cotton, and, fanned by the stiff breeze which was blowing lengthwise of the ship, destroy or greatly damage the ship and the whole cargo. Saving a ship from imminent danger of destruction by fire is as much a salvage service as saving her from other perils of the seas. The Blackwall, 10 Wall. 1. The shortness of the time occupied in rescuing the ship from danger does not lessen the merit of the service. The General Palmer, 5 Notes Cas. 159, note; The Syrian, 2 Marit. Law Cas. 387; Sonderburg v. Ocean Tow-Boat Co. 3 Woods, 146. The danger being real and imminent, it is not necessary, in order to make out a salvage service, that escape by other means should be impossible. Talbot v. Seeman, 1 Cranch, 1, 42. The fact that no serious risk was incurred on the part of the salvors does not change the nature of the service, although an important element in estimating its merit and the amount of the reward. As has been well said by Mr. Justice CURTIS, 'the relief of property from an impending peril of the sea, by the voluntary exertions of those who are under no legal obligation to render assistance, and the consequent ultimate safety of the property, constitute a case of salvage. It may be a case of more or less merit, according to the degree of peril in which the property was, and the danger and difficulty of relieving it. But these circumstances affect the degree of the service, not its nature.' The Alphonso, 1 Curt. 376, 378. The contract of the tow-boat and her officers and crew was to tow the ship, and did not include the rendering of any salvage service by putting out fire or otherwise. Such a service, which, by the use of the steam-pump and engine of the tow-boat, rescued the ship from an unforeseen and extraordinary peril, gave the owner as well as the officers and crew of the tow-boat a right to salvage. The William Brandt, Jr., 2 Notes Cas. Supp. 1xvii.; The Saratoga, Lush. 318; The Minnehaha, 15 Moore, P. C. 133; S. C. Lush. 335; The Annapolis, Lush. 355, 361, 372. And no doubt is or could be raised as to the right of the passengers on the tow-boat, whose exertions contributed to putting out the fire, to share in the salvage awarded to her officers and crew. The Cora, 2 Pet. Adm. 361; S. C. 2 Wash. C. C. 80; The Hope, 3 Hagg. Adm. 423. Evers, the passenger on the Connemara, was also entitled to share in the salvage. A passenger cannot, indeed, recover salvage for every service which would support a claim by one in nowise connected with the ship. In the case of a common danger, it is the duty of every one on board the ship to give every assistance he can, by the use of all ordinary means in working and pumping the ship, to avert the danger. Yet a passenger is not, as the officers and crew are, bound to stand by the ship to the last; he may leave her at any time and seek his own safety; and for extraordinary services, and the use of extraordinary means, not furnished by the equipment of the ship herself, by which she is saved from imminent danger, he may have salvage. Newman v. Walters, 3 Bos. & P. 612; The Branston, 2 Hagg. Adm. 3, note; The Salacia, 2 Hagg. Adm. 262, 269; The Vrede, Lush. 322; The Pontiac, 5 McLean, 359, 363; The Great Eastern, 2 Marit. Law Cas. 148; S. C. 11 Law Times, (N. S.) 516; 3 Kent, Comm. 246. The services of Evers were of peculiar value, and involved the use of means outside the ship. His promptness and vigilance gave the alarm, which, by the supineness and neglect of the officers and crew of the ship, might not otherwise have been given in time to save her. This might not of itself have entitled him to reward; but beyond this he exerted himself, as if he had been one of the officers and crew of the tow-boat, in the use of the steam-pump and hose on board of her, by which the fire on the ship was effectually subdued. It may also be observed that this case comes before us on the appeal of the owners of the ship; and that there is no controversy, either between Evers and the other salvors, or between the salvors who gave their personal exertions and the owners of the tow-boat whose machinery was used, as to the distribution of the salvage. 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. The Blaireau, 2 Cranch, 240, 267; The Adventure, 8 Cranch, 221, 228; The Emulous, 1 Sumn. 207, 213; The Cora, 2 Pet. Adm. 361, 375; S. C. 2 Wash. C. C. 80; Post v. Jones, 19 How. 150, 161. In The Sybil, 4 Wheat. 98, Chief Justice MARSHALL said: 'It is almost impossible that defferent minds, contemplating the same subject, should not form different conclusions as to the amount of salvage to be decreed and the mode of distribution.' And by the uniform course of decision in this court, during the period in which it had full jurisdiction to reverse decrees in admiralty upon both facts and law, as well as in the judicial committee of the privy council of England, exercising a like jurisdiction, the amount decreed below was never reduced, unless for some violation of just principles, or for clear and palpable mistake or gross overallowance. Hobart v. Drogan, 10 Pet. 108, 119; The Camanche, 8 Wall. 448, 479; The Neptune, 12 Moore, P. C. 346; The Carrier Dove, 2 Moore, P. C. (N. S.) 243; S. C. Brown. & L. 113; The Fusilier, 3 Moore, P. C. (N. S.) 51; S. C. Brown. & L. 341. By the act of congress of sixteenth February, 1875, c. 77, the appellate power of this court is restricted within narrower bounds; its authority to revise any decree in admiralty of the circuit court is limited to questions of law; and the finding of facts by that court is equivalent to a special verdict, or to facts found by the court in an action at law when a trial by jury is waived. The Abbottsford, 98 U. S. 440; The Francis Wright, 105 U. S. 381; Sun Ins. Co. v. Ocean Ins. Co. 1 SUP. CT. REP. 582. The effect of this change may be illustrated by referring to the revisory power of the courts in actions at law tried by a jury. The facts are decided by the jury in the first instance. If the jury return a general verdict, clearly against the weight of evidence, or assessing exorbitant damages, the court in which the trial is had may set aside the verdict and order a new trial. But a court of error, to which the case is brought by bill of exceptions or appeal on matter of law only, cannot set aside the verdict, unless there is no evidence from which the conclusion of fact can be legally inferred. Parks v. Ross, 11 How. 362; Schuchardt v. Allens, 1 Wall. 359. Before the act of 1875, this court, upon an appeal in a case of salvage, gave the same weight, and no more, to the decree of the court below that a court of common law would allow to the verdict of a jury, and might revise that decree for manifest error in matter of fact, even if no violation of the just principles which should govern the subject was shown. Post v. Jones, 19 How. 150, 160. Since the act of 1875, in cases of salvage, as in other admiralty cases, this court may revise the decree appealed from for matter of law, but for matter of law only; and should not alter the decree for the reason that the amount awarded appears to be too large, unless the excess is so great that, upon any reasonable view of the facts found, the award cannot be justified by the rules of law applicable to the case. In the present case a vessel and cargo of great value were rescued from imminent danger by the energetic efforts of the salvors, and the amount of salvage awarded is less than one-sixteenth of the value of the property saved. Although upon the circumstances of the case, so far as they can be brought before us by the summary of them in the findings of fact by the circuit court, we might have been better satisfied with an award of a smaller proportion, we cannot say that the amount awarded is so excessive as to violate any rule of law. Decree affirmed.
107.US.445	Section 3466 of the Revised Statutes, infra, p. 447, which, in certain cases therein mentioned, gives to the United, States priority of payment of debts due to it, does not apply to its demands against an insolvent national bank.	The Revised Statutes, in section 3466, provide that—— 'Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority hereby established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed.' This section is substantially a copy of section 5 of the act of March 3, 1797, entitled 'An act to provide more effectually for the settlement of accounts between the United States and receivers of public money.' Statutes passed before 1797 embodied similar provisions, and also declared that parties who are sureties of insolvents may pay to the United States any balance due to them, and have the same priority in the payment of their demands out of the estates of such insolvents as the United States would have if no such payment were made. The language of the section in the Revised Statutes is general and comprehensive in its terms, and applies to demands of the United States against any insolvent person living, or the estate of any insolvent person dead; and also to demands against any person who, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, and against any estate of an absconding, concealed, or absent debtor whose effects have been attached by process of law. The question is whether, under this broad and general language, the United States, having demands against an insolvent national bank, are entitled to priority of payment out of its assets over other creditors. The appellants contend that the statute refers to such insolvency as is determined by judicial decree, as under a bankrupt act, or is manifested by the debtor's voluntary assignment of his property, or by its attachment under process against him, as an absconding, concealed, or absent debtor, and that within this meaning the Cook County National Bank never became insolvent, and that, therefore, the provisions giving priority of payment to demands of the United States against insolvents do not apply. From the view we take of the act authorizing the formation of national banks, it is unnecessary to consider whether or not this position is tenable. We consider that act as constituting by itself a complete system for the establishment and government of national banks, prescribing the manner in which they may be formed, the amount of circulating notes they may issue, the security to be furnished for the redemption of those in circulation, their obligations as depositaries of public moneys, and as such to furnish security for the deposits, and designating the consequences of their failure to redeem their notes, their liability to be placed in the hands of a receiver, and the manner, in such event, in which their affairs shall be wound up, their circulating notes redeemed, and other debts paid, or their property applied toward such payment. Everything essential to the formation of the banks, the issue, security, and redemption of their notes, the winding up of the institutions, and the distribution of their effects, are fully provided for, as in a separate code by itself, neither limited nor enlarged by other statutory provisions with respect to the settlement of demands against insolvents or their estates. In the first place, the banks are required to deposit with the treasurer bonds of the United States as security for any notes that may be issued, the amount of which cannot in any case exceed 90 per cent. of the par value of the bonds. Rev. St. § 5171. Should the market or the cash value of the bonds become reduced at any time below the amount of the notes issued, the comptroller of the currency may require that the amount of the depreciation be deposited with the treasurer IN OTHER UNITED STATES BONDS, OR IN MONEY, so long as such depreciation continues. Rev. St. § 5167. In case of the refusal of a bank to pay its notes, the bonds may be sold at public auction in the city of New York, and their proceeds applied to reimburse the United States the amount expended by them in paying the circulating notes; aND FOR ANY deficiency which may remain, the United States are entitled to a paramount lien upon all the assets of the bank, which is to be paid in preference to all other claims, except for costs and necessary expenses in administering the same. Rev. St. § 5230. In the second place, when the banks are made depositaries of public moneys and employed as financial agents of the government, it is the duty of the secretary of the treasury to require them to give satisfactory security by the deposit of United States bonds, or otherwise, for the safe-keeping and prompt payment of the public money deposited, and for the faithful performance of their duties as financial agents. The amount of security which the secretary may thus require has no limit but his own judgment as to its necessity. Every officer of a bank which is not an authorized depositary, and which has not, therefore, given the required security, who knowingly receives any public money on deposit, is liable for embezzlement. Rev. St. § 5497. The government can thus always have security, limited in amount only by the judgment of the secretary of the treasury, for public moneys deposited with any national bank. With these provisions for security against possible loss for moneys deposited, it would seem only equitable that the government should call for such security, and, if it prove insufficient, take the position of other creditors in the distribution of the assets of the bank in case of its failure. The framers of the banking law evidently so regarded the matter. After providing for the appointment of a receiver by the comptroller of the currency upon the suspension or failure of a bank, the law requires the receiver to take possession of its books and records, and assets of every description, and to collect all debts, dues, and claims belonging to it; and authorizes him, upon an order of a court of competent jurisdiction, to sell or compound bad or doubtful debts; to sell the real or personal property of the bank, and, if necessary, in order to pay his debts, to enforce the individual liability of its stockholders, and it directs him to pay over all moneys thus received to the treasurer of the United States, subject to the order of the comptroller of the currency. It also required the comptroller, upon appointing a receiver, to cause notice to be published, calling upon all persons having claims against the bank to present the same with legal proof thereof. It then declares as follows, in section 5236: 'From time to time, after full provision has been first made for refunding to the United States any deficiency in redeeming the notes of such association. the compTROLLER SHALL MAKE A RATABLE DIVIDEND OF The money so paid over to him by such receiver, on all such claims as may have been proved to his satisfaction or adjudicated in a court of competent jurisdiction, and, as the proceeds of the assets of such association are paid over to him, shall make further dividends on all claims previously proved or adjudicated; and the remainder of the proceeds, if any, shall be paid over to the shareholders of such association, or their legal representatives, in proportion to the stock by them respectively held.' This section provides for the distribution of the entire assets of the bank, giving no preference to any claim except for moneys to reimburse the United States for advances in redeeming the notes. When this reimbursement is fully provided for, the balance of the assets, as the proceeds are received, is subject to a ratable dividend on all claims proved to the satisfaction of the receiver, or adjudicated by a court of competent jurisdiction. Any sum remaining after the payment of all these claims is to be handed over to the stockholders in proportion to their respective shares. These provisions could not be carried out if the United States were entitled to priority in the payment of a demand not arising from advances to redeem the circulating notes. The balance, after reimbursement of the advances, could not be distributed, as directed, by a ratable dividend to all holders of claims; that is, to all creditors. These provisions must be deemed, therefore, to withdraw national banks, which have failed, from the class of insolvent persons out of whose estates demands of the United States are to be paid in preference to the claims of other creditors. The law of 1797, RE-ENACTED IN THE REVISED STATUTES, Giving priority to the demands of the United States against insolvents, cannot be applied to demands against those institutions. The provisions of that law and of the national banking law being, as applied to demands against national banks, inconsistent and repugnant, the former law must yield to the latter, and is, to the extent of the repugnancy, superseded by it. The doctrine as to repugnant provisions of different laws is well settled, and has often been stated in decisions of this court. A law embracing an entire subject, dealing with it in all its phases, may thus withdraw the subject from the operation of a general law as effectually as though, as to such subject, the general law were in terms repealed. The question is one respecting the intention of the legislature. And although as a general rule the United States are not bound by the provisions of a law in which they are not expressly mentioned, yet if a particular statute is clearly designed to prescribe the only rules which should govern the subject to which it relates, it will repeal any former one as to that subject. Daviess v. Fairbairn, 3 How. 636; U. S. v. Tynen, 11 Wall. 88. In addition to these conflicting provisions in the banking law, necessarily superseding those of the law of 1797, as to the priority of the United States in the payment of their demands out of the estates of insolvents, there is the significant declaration of the banking law that for any deficiency in the proceeds of the bonds deposited as security for the circulating notes of the bank, the United States shall have a paramount lien upon all its assets, which shall be made good in preference to all other claims, except for costs and expenses in administering the same. This declaration was unnecessary and quite superfluous, if for such deficiency the United States already possessed, under the act of 1797, the right to be paid out of the assets of the bank in preference to the claims of other creditors. The declaration, considered in connection with the ratable distribution of the assets, prescribed after such deficiency is provided for, is equivalent to a declaration that no other priority in the distribution of the proceeds of the assets is to be claimed. This view of the banking law is not affected by the subsequent enactment, in 1867, of the bankrupt act, giving priority to the deMANDS OF THE UNITED States against the estates of bankrupts. That enactment was dealing with the estates of persons adjudged to be insolvent under that law, and covers only the distribution of their estates. It has no further reach. It remains only to consider whether the United States have the right to claim the payment of this demand out of the surplus moneys remaining in the treasury of the proceeds of the bonds deposited as security for the circulating notes of the bank. The surplus is sufficient to pay the demand of the United States in full. Can the United States set off their demand against these proceeds? We have no hesitation in answering this question in the negative. The bonds were received in trust as a pledge for the payment of the circulating notes. The statute so declares in express terms. Rev. St. §§ 5162, 5167. They were to be returned to the bank when the notes were paid, if not sold to reimburse the United States for moneys advanced to redeem the notes. The bank could have claimed their return at any time upon a surrender of the notes. The surplus constituted the assets of the bank, and part of the fund appropriated by the statute for its creditors. It was charged with this liability, and was held subject to it after the purposes of the original trust were accomplished, although remaining in the treasury. It was then subject to a new trust. A trustee cannot set off against the funds held by him in that character his individual demand against the grantor of the trust. Courts of equity and courts of law will not allow such an application of the funds so long as they are affected by any trust. It would open the door to all sorts of chicanery and fraud. The fund must be relieved from its trust character before it can be treated in any other character. This doctrine is well illustrated in the case of Sawyer v. Hoag, 17 Wall. 610, 622. There a stockholder indebted to an insolvent corporation for unpaid shares, undertook to set off against the claim upon him a debt due to him by the corporation. But it was held that this could not be done. Said the court, speaking by Mr. Justice MILLER: 'The debt which the appellant owed for his stock was a trust fund devoted to the payment of all the creditors of the company. As soon as the company became insolvent, and this fact became known to the appellant, THE RIGHT OF set-off for an ordinary debt to its full amount ceased. It became a fund belonging equally in equity to all the creditors, and could not be appropriated by the debtor to the exclusive payment of his own claim.' Here the surplus, being a fund for all the creditors, was subject to be distributed to them immediately upon the reimbursement of the advances of the United States, and the right of the creditors to it was not affected by the fact that it was at the time in the actual possession of the treasury department. Nor is the relation of the United States to this fund changed by the forfeiture of the bonds, which the comptroller of the currency was authorized upon the failure of the bank to declare. The forfeiture was not a confiscation of the bonds to the government. It amounted only to an appropriation of them, against any other claim, to the specific purposes for which they had been deposited, authorizing their cancellation at market value when not above par, or their sale, so far as necessary to redeem the circulation or reimburse the United States for moneys advanced for that purpose. When that purpose was accomplished, the bank had the right to any surplus of their proceeds, equally as though that right had been in express terms declared. It follows from the views expressed that the decree of the court below must be reversed and the cause be remanded, with directions to sustain the demurrer and dismiss the bill. And it is so ordered.
107.US.378	1. An appeal bond in an ordinary foreclosure suit in a court of the United States does not operate as security for the amount of the original decree; nor for the interest accruing thereon pending the appeal; nor for the balance due after applying the proceeds of the mortgaged premises; nor for the rents and profits, or the use and detention of the property pending the appeal: but only for the costs of the appeal, and the deterioration or waste of the property, and perhaps burdens accruing upon it by non-payment of taxes, and loss by fire if it be not properly insured. Quxre, Is its mere depreciation in market value any cause of recovery on the bond. 2. An appeal bond in such a suit, instead of following the statutory requirement, "that the appellant shall prosecute his appeal to effect, and, if he fail to make his plea good, shall answer all damages and costs," superadds the words that he shall "pay for the use and detention of the property covered by the mortgage in controversy during the pendency of the appeal." In an action on the bond, -Hfeld, that these words must be rejected, and the bond construed as having its ordinary and proper legal effect, the judge taking it having no right to exact such an addition to the condition of an appeal and supersedeas. 3. This case distinguished from those in which official bonds, and bonds given to the government for the purpose of enjoying some office or privilege, have been sustained as contracts at common law.	This is an action on an appeal bond given for supersedeas of execution on a decree of foreclosure rendered by the circuit court for the district of Nebraska, and appealed to this court and affirmed; and the question is as to the measure of damages to be recovered on said bond. The foreclosure suit was brought to raise the amount due on certain bonds of the Omaha Hotel Company out of certain land and premises situated in the city of Omaha, which had been mortgaged by the company to secure the payment thereof. A decree was made on the eighth of May, 1875, by which it was ordered that the mortgaged premises be sold and the proceeds applied to pay the debt, after paying costs of sale and insurance and taxes accruing in the mean time. The defendants appealed, and to obtain supersedeas of execution gave the appeal bond which is the subject of the present controversy. The bond was in the penalty of $50,500, and after reciting the decree and appeal was conditioned as follows: 'Now, the condition of the said obligation is such that if the said Omaha Hotel Company shall duly prosecute said appeal to effect, and pay said Jeptha H. Wade, James W. Bosler, Thomas Wardell, John A. Creighton, administrator of the estate of Edward Creighton, deceased, Andrew J. Poppleton, Augustus Kountze, Herman Kountze, and Henry W. Yates, their executors, administrators, or assigns, for the use and detention of the property covered by the mortgage in controversy in this suit, during the pendency of said appeal, and the costs of the suit, and just damages for delay, and costs and interest on said appeal, if it fails to make good its plea, this obligation shall be void; otherwise to remain in full force and virtue.' The decree being affirmed and the premises sold, the proceeds were found to be insufficient to satisfy the debt, to the amount of $88,480.85; and for this deficiency a decree was rendered against the Omaha Hotel Company, and an execution issued, which was returned unsatisfied. Thereupon the present suit was brought on the appeal bond, and the plaintiffs by their petition claimed the entire penalty and interest on the facts above stated and on the ground that the company was insolvent; that, pending the appeal, the property had depreciated in value $30,000; and that the use and detention of it was worth $30,000 more. The defendants, in their answer, averred that they had kept the property in good repair at a large expense, had paid all the taxes upon it, and had kept it insured for the benefit of the bondholders to the amount of $100,000; and that instead of depreciating, it was worth much more when the sale was made than it was at the time of the original decree. The jury, by a special verdict, found that the rental value of the property, pending the appeal, with interest to the time of trial, was $44,838,67, and that the expenses paid by the defendants for taxes, insurance, and repairs, with interest thereon, was $26,082,71; that the value of the property in May, 1875, was $92,500, and in April, 1878, $139,000; that in May, 1875, it would have sold at master's sale for $62,000, [whereas it sold in 1878 for $120,000;] that the interest on the decree pending the appeal was $58,870.25; and that the penalty of the bond, with interest from July 11, 1878, to the time of the trial, amounted to $57,750; and that the costs of the original suit unpaid by the defendants was $530. The court rendered judgment in favor of the plaintiffs for $19,735.93, being the difference between the rental value of the property pending the appeal, and the sums expended by the defendants for taxes, insurance, and repairs, allowing interest on both sides; with the addition of the item of $530 costs unpaid by the defendants, and interest from the time of trial to the date of the judgment. Both parties brought writs of error. The plaintiffs now contend that they ought to have had judgment for the entire penalty of the bond, because—First, the bond expressly provides that the Omaha Hotel Company shall pay for the use and detention of the property pending the appeal, as well as costs and just damages for delay, which greatly exceeds the penalty; secondly, if the bond is to be limited in effect to the terms of the statute prescribing a bond, the damages are still greater than the penalty, its legal effect being to secure, to the extent of the penalty, (1) payment of the whole decree beyond what may be produced by the sale of the property; (2) the interest accruing pending the appeal, which alone exceeds the penalty; (3) the value of the use and detention of the property pending the appeal. The defendants contend that judgment should have been given for them. The appeal bond sued on in this case was given under the requirement of section 1000 of the Revised Statutes, which declares that every justice or judge signing a citation or any writ of error shall, except in cases brought up by the United States, etc., take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect, and, if he fail to make his plea good, shall answer all damages and costs, where the writ is a supersedeas and stays execution, or all costs only where it is not a supersedeas as aforesaid. Section 1007 gives the effect of a supersedeas to a writ of error where such a bond as above described is given, and the writ is sued out and filed in proper time. Section 1010 declares that where judgment is affirmed the court shall adjudge to the respondent in error just damages for his delay, and single or double costs at its discretion. Section 1012 declares that appeals from the circuit courts, etc., shall be subject to the same rules, regulations, and restrictions as are or may be prescribed in law in cases of writs of error. These enactments are substantially a reproduction of like clauses in the judiciary act of 1789, as regards writs of error, and of the act of 1803, as regards appeals. The material words are the clause in the bond which declares 'that the plaintiff in error [or appellant] shall prosecute his writ to effect, and if he fail to make his plea good, he shall answer all damages and costs.' The scope and effect of this phrase, as applied to cases like the present, are the principal point in controversy. The bond sued on has an additional phrase not required by the law, the effect of which will be separately considered. By the common law a writ of error, without any security, was of itself a supersedeas of execution from the time of its allowance or recognition by the court to which it was directed; and even before, if the defendant in error had notice of it; or, in the common pleas, from the time of its delivery to the clerk of the errors of that court, whose business it was, among other things, to prepare the returns. 1 Tidd, Pr. 530, 1145; Impey, Pr. C. P. 16; Petersd. Abr. tit. 'Error, I, (H a.)' The presentation of the writ issuing from the superior court stopped all further proceedings except such as were incidental to a compliance with its command to certify the record. But, as writs of error came to be sued out for the purpose of delay, various acts of parliament were passed, requiring security in certain cases, in order that the writ might operate as a supersedeas. First, without referring to a statute in the time of Elizabeth, the statute of 3 James I. c. 8, declared that no execution should be stayed or delayed upon or by any writ of error, or supersedeas thereon, for the reversing of any judgment in debt upon a single bond, or a bond with condition for the payment of money only, or in debt for rent, or upon any contract, unless the plaintiff in error, with two sufficient sureties, should first be bound to the plaintiff in the judgment, 'by recognizance, in double the sum recovered by the former judgment, to prosecute the writ of error with effect, and also to satisfy and pay, if the said judgment should be affirmed, or the writ of error non-prossed, all and singular the debts, damages, and costs adjudged upon the former judgment, and all costs and damages to be awarded for the delaying of execution.' This statute was specific as to the cases in which bail in error (as it was called) was required, and it was frequently held that it could not be required in any other cases. 2 Sellon, Pr. 367-374; 2 Tidd, 1150. Subsequently, by the statute of 13 Car. II. c. 2, as enlarged by 16 & 17 Car. II. c. 8, the same recognizance was required to stay execution in all personal actions in which a judgment was rendered upon a verdict, and in most cases double costs were given in case the judgment was affirmed; and in writs of error upon judgment, after verdict in dower and ejectment, it was provided that execution should not be stayed unless the plaintiff in error should be bound to the plaintiff in such reasonable sum as the court below should think fit, with condition that if the judgment should be affirmed, or the writ of error discontinued, in default of the plaintiff in error, or he should be nonsuited therein, that then he should pay such costs, damages, and sum or sums of money as should be awarded upon or after such judgment affirmed, discontinuance, or nonsuit; and to ascertain the sum and damages to be awarded, it was provided that the court should issue a writ of inquiry as well of the mesne profits as of the damages by any waste committed after the first judgment in dower or ejectment, and give judgment therefor and for costs. This was the form in which the law stood for more than a century prior to our revolution, and is believed to have generally prevailed in this country, either by force of the English statutes, or similar statutes adopted by the colonies themselves, down to the time of the passage of the judiciary act by congress in 1789. See 1 Rev. Laws N. Y. (1813,) p. 143, Act of 1801; Acts of New Jersey, Feb. 1, 1799, and Feb. 28, 1820, Elmer's Dig. 159, 169; Act of Maryland, 1713, c. 4, 1 Kilty's Laws; and Alexander's British Statutes in force in Maryland, 16 & 17 Car. II. c. 8. In Virginia, by the act of 1788, it was provided that before granting any appeal from a county to a district court, or issuing any writ of error or supersedeas, the party praying the same should enter into bond with sufficient security, in a penalty to be fixed by the court or judge, with condition to pay the amount of the recovery, and all costs and damages awarded, in case the judgment or sentence should be affirmed; and the damages were fixed at 10 per cent. per annum upon the principal sum and costs recovered in the inferior court; and the same provisions were applied to appeals and writs of error to the court of appeals. By the act of 1794, on appeal from a decree in equity to the high court of chancery, the condition of the appeal bond required was to satisfy and pay the amount recovered in the county court, and all costs, and to perform in all things the decree, if the same should be affirmed. Laws Va. (Ed. 1814,) pp. 115, 87, 448. In Massachusetts, as appears by an early case, (1804,) a supersedeas was granted upon the plaintiff in error giving bond to respond all damages and costs in case the judgment should be affirmed. Bailey v. Baxter, 1 Mass. 156. In Pennsylvania, where the judgment was affirmed upon a writ of error, the execution included the interest from the date of the original judgment. Respublica v. Nicholson, 2 Dall. 256. It is thus seen that, in the case of money judgments, bail in error was required to secure (1) the amount of the original judgment; (2) the costs and damages occasioned by the delay of execution; and, in the case of dower and ejectment, the only other cases in which bail was required, and where the main thing in controversy was land, bail was required to secure only such costs, damages, and money as should be awarded after affirmance of judgment, for mesne profits and waste pending the appeal. In relation to money judgments, a long train of decisions in England shows that the damages for delay for which the bail in error were to respond were the interest on the sum recovered below from the day of signing final judgment to the time of affirmance, and costs in the writ of error, and in some cases double costs. In the exchequer chamber, when double costs were recoverable, the court exercised its discretion whether to allow interest or not, it not being allowed as a matter of course; but interest was only allowed where the original demand was one that drew interest, and not in cases of mere tort or unliquidated damages. Tidd, 1182, 1183. In the house of lords, they gave large or small costs in their discretion, according to the nature of the case, and the reasonableness or unreasonableness of litigating the judgment of the court below. Id. 1184. We have no reason to believe that the rule of damages for delay on a recognizance, or bond in error, was materially different in this country, in 1789, from that which prevailed in England. The statutes being substantially the same, undoubtedly the same rule prevailed in administering them. On appeals in chancery the practice in England, in case of an appeal from the master of the rolls to the lord chancellor, was for the party appealing to deposit £10, to be paid to the other party if the decree was not materially varied, and he was also required to pay the costs of the appeal; and on appeal from the court of chancery to the house of lords, the appellant was obliged to make a deposit of £20, and give security by recognizance in the sum of £200, to pay such costs to the defendant in the appeal as the court should appoint, in case the decree should be affirmed. Harr. Ch. Pr. (Ed. Newland,) 342, 349. In 1810 these amounts were doubled. Smith, Ch. Pr. 27, 44. If a party wished to file a bill of review, the general rule was, that he must perform the decree before filing his bill. Such being the rules prevailing on the subject when the act of 1789 was passed, which required the plaintiff in error to give security 'to prosecute the writ of error to effect, and to answer all damages and costs if he failed to make his plea good,' the extremely general terms of the law are noticeable. According to the English law, the terms 'all damages and costs,' would only cover the damages for delay, security for the original judgment being expressly provided for by separate words; but the act of congress does not say 'damages for delay,' but generally 'all damages and costs,' without any specific provision for the original judgment; and the bond is required in all cases, and not merely on error to money judgments and judgments in dower and ejectment; and not merely in cases at law, but in cases of equity also; for the writ of error was the process of review prescribed by the judiciary act both at law and in equity; and when appeals were allowed in the latter by the act of 1803, they were subjected to the same rules and conditions as writs of error. The only guide, or hint of guidance, given by the judiciary act as to what damages were to be awarded on a bond in error, other than what might be deduced by analogy from the English and state laws, is an expression contained in the twenty-third section, where it is said that if, upon a writ of error, the supreme or circuit court shall affirm a judgment or decree, they shall adjudge or decree to the respondent in error just damages for his delay, and single or double costs at their discretion. So that, as the result of the whole, the matter was left very much at large, and subject to the regulation of the courts, and such analogies as existing laws afforded. By an act passed December 12, 1794, (1 St. 404,) it was declared that the security to be required on signing a citation on a writ of error which shall not be a supersedeas and stay execution, shall be only to such an amount as, in the opinion of the judge taking the same, shall be sufficient to answer all such costs as, upon an affirmance of the judgment or decree, may be adjudged or decree to the defendant in error. The substance of this act is reproduced in the Revised Statutes; but it sheds no light on the question of damages as distinguished from mere costs. The supreme court at an early day (February term, 1803) adopted the two following rules: (1) In all cases where a writ of error shall delay the proceedings on the judgment of the circuit court, and shall appear to have been sued out merely for delay, damages shall be awarded at the rate of 10 per centum per annum on the amount of the judgment. (2) In such cases where there exists a real controversy, the damages shall be only at the rate of 6 per centum per annum. In both cases the interest is to be computed as part of the damages. The latter rule was changed in 1852, when by an amended rule, still in force, on affirmance of a judgment, interest was directed to be calculated and levied from the date of the judgment below until paid, at the same rate that similar judgments bear interest in the courts of the state where the judgment was rendered. 13 How. v. The other rule was amended in 1871, giving 10 per cent. damages in addition to interest, when the writ of error appears to be sued out merely for delay. 11 Wall. x. And both rules were extended to appeals from decrees in chancery for the payment of money in 1852. ,13 How. v. These rules may undoubtedly be regarded as prescribing the measure of damages for delay in the cases in which they apply; that is, in the case of money judgments and decrees. But whether the bond in error covered the original debt was not distinctly decided until the case of Catlett v. Brodie, 9 Wheat. 553, came before the court. In that case judgment was rendered for the plaintiff below for a large sum, but the judge who singed the citation took a bond in a small amount to respond the damages and costs. On a motion to dismiss the writ of error for insufficiency of the bond, it was contended for the plaintiff in error that the act meant only to provide for such damages and costs as the court should adjudge for the delay. But the court held that the word 'damages' covered whatever losses the plaintiff might sustain by the judgment not being satisfied and paid after the affirmance; in other words, that the bond in error had the same effect as the recognizance required by the English statutes, and was intended to secure payment of the original judgment, as well as the damages for delay. Hence, the bond should have been taken in an amount sufficient to secure the whole debt; and it was ordered that the writ of error should be dismissed, unless, within 30 days from the rising of the court, the plaintiff in error should give a bond sufficient in amount to secure the whole judgment. In Stafford v. Union Bank of Louisiana, 16 How. 135, though no decision was made, because the case was not properly before the court, an opinion was delivered by Justice Mc,LEAN, as for the court, that the same rule would apply in case of an appeal from a decree in equity for the sale and foreclosure of certain negroes who had been delivered to a receiver pendente lite; and that the bond should have been to secure the whole mortgage debt. Justice CATRON dissented from this view, holding that where there was a fund in the possession of the court, no security to cover its contingent loss should be required; and that to construe the act as if this were a simple judgment at law would operate most harshly. In accordance with the suggestion made by the court, application was made for a mandamus to the judge below, to compel him to cause the decree to be carried into execution notwithstanding the appeal. On a rule to show cause the judge returned the facts as above stated, and that he had no power to take further order in the case. But the court, deeming the appeal bond insufficient to operate as a supersedeas, granted the mandamus. 17 How. 275. Subsequent decisions have undoubtedly modified the rule followed in this case, and, indeed, have overruled it, and are more in accordance with the views expressed by Justice CATRON. In Roberts v. Cooper, 19 How. 373, which was an action of ejectment for the recovery of mining lands, the plaintiff having recovered the land with only nominal damages, a writ of error was brought by the defendant, who was required to give a bond for only $1,000. The plaintiff applied to this court for an order requiring additional security, producing affidavits to show that the damages which he would sustain by the delay in working the mine, caused by the supersedeas, would exceed $25,000. The court refused the motion; and said that if it were a money demand, on which a sum certain had been given by a judgment, it would have been the duty of the judge to take care that good security was given; but that in ejectment, where only nominal damages are recovered, the court cannot interfere to enlarge the security to recover damages which a plaintiff may recover in an action for mesne profits, or other losses he will sustain by being kept out of possession. The court held that the case was not provided for by any legislation of congress, as had been done in England by the statute of 16 & 17 Car. II. c. 8. In the Rubber Co. v. Goodyear, 6 Wall. 153, the subject again came before this court on a question as to the amount of security required upon appeal from a personal decree in equity, where a portion of the amount had been secured by a deposit in court. The decree was for over $300,000, and the judge following the usual practice required a bond in double the amount of the decree. The defendants, as security for the claim, had deposited in the court below government bonds to the amount of $200,000. On a motion in this court to reduce the amount of the bond, the court reduced it to $225,000. Chief Justice CHASE, delivering the opinion of the court, said: 'It is not required that the security shall be in any fixed proportion to the decree. What is necessary is that it be sufficient.' From the amount involved in this case, and the eminence of the counsel engaged in it, it was no doubt carefully considered. After its determination, the court made a general rule as to the amount of indemnity required in supersedeas bonds, which now stands as the twenty-ninth rule of the court. This rule declares that 'such indemnity, where the judgment or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including just damages for delay and costs and interest on the appeal; but in all suits where the property in controversy necessarily follows the event of the suit, as in real actions, replevin, and in suits on mortgages; or where the property is in the custody of the marshal, under admiralty process, as in case of capture or seizure; or where the proceeds thereof, or a bond for the value thereof, is in the custody or control of the court,—indemnity in all such cases is only required in an amount sufficient to secure the sum recovered for the use and detention of the property, and the costs of the suit, and just damages for delay, and costs and interest on the appeal.' Since the adoption of this rule, the matter has come up for consideration in several cases. In French v. Shemaker, 12 Wall. 86, where the matter in controversy was the possession of a railroad, the interest of the defendant in which had been pledged as security for $5,000, and which was in the hands of a receiver, upon a decree for the complainant, and an appeal, the bond taken for a supersedeas was in the penalty of $500, and this court, after reciting the rule, held that nothing appeared to show that the bond was insufficient. In Jerome v. McCarter, 21 Wall. 17, an appeal was taken from a decree of over a million of dollars for the foreclosure and sale of a canal, subject to a prior lien of over a million and a half of dollars. The canal company had become bankrupt, and the assignees in bankruptcy brought the appeal. The appeal bond required of them was $10,000; and motion was made in this court to have the amount of security increased. The court after reviewing the previous cases, and adverting to the twenty-ninth rule, refused the motion, holding that the amount of security in such a case was in the discretion of the judge who took the bond, and that this court would not interfere with that discretion, unless there had been a change of circumstances requiring additional security. The chief justice said: 'This is a suit on a mortgage, and therefore, under this rule, a case in which the judge who signs the citation is called upon to determine what amount of security will be sufficient to secure the amount to be recovered for the use and detention of the property, and the costs of the suit, and just damages for the delay, and costs and interest on the appeal. All this, by the rule, is left to his discretion.' It being contended that the judge had disregarded the established rule, to require security for the interest accruing pending the appeal, which in that case would amount, on the debt due to the complainant and on the prior liens, to more than half a million of dollars, the court held that this is not the requirement of the rule; that the object is to provide indemnity for the loss by the accumulation of interest consequent upon the appeal, not for the payment of the interest; and that, as to this, the judge must determine. It was added that the decree did not interfere with an action at law against the company, if it were not bankrupt, nor with proving the claim in bankruptcy, and obtaining a dividend, since it was bankrupt. So far as the point decided in this case goes, it determines that on an appeal from a decree for the foreclosure of a mortgage, the appeal bond is not intended as security for either the amount of the decree or the interest accruing pending the appeal, but for such damage as may arise from the delay incident to the appeal; and although it is intimated that this damage may depend upon the use and detention of the mortgaged property, yet that was not the point in judgment. In Ex parte French, 100 U. S. 1, (an ejectment case,) the bond being amply sufficient to cover the damages, or mesne profits, recovered in the court below, this court refused to interfere, by a mandamus, to compel the court below to proceed to execution. The chief justice said: 'In this view of the case the bonds are sufficient in amount and form. So far as the money parts of the judgment are concerned, they are far in excess in each instance of the amount recovered against the several defendants who seek the stay; and as to the damages on account of the detention of the property, we decided in Jerome v. McCarter that the amount of the bond rested in the discretion of the judge or justice who signed the citation, or allowed the supersedeas, and would not be reconsidered here.' In this case the court did look to see whether the bond was sufficient to cover the mesne profits or damages recovered below; but declined to examine into its sufficiency to secure the mesne profits accruing pending the proceedings in error, leaving that to the discretion of the judge. The case decides nothing as to whether such mesne profits would be recoverable under the bond or not. By the English statute of 16 & 17 Car. II. c. 8, as we have seen, they would be so recoverable; but in Roberts v. Cooper, before cited, it was held that our statute does not provide for the case. The last case to which we shall refer is that of Sup'rs Wayne Co. v. Kennicott, 103 U. S. 554. There the county had given a mortgage upon its swamp lands to secure an issue of bonds by the Mount Vernon Railroad Company. This mortgage was foreclosed, and the lands were decreed to be sold to raise the amount due, which was ascertained by the decree. The county appealed, and a supersedeas bond of $40,000 was required to be given. The decree being affirmed by this court, a suit was brought on the appeal bond, and judgment was given against the county for the whole penalty. The judgment was brought here by writ of error, and reversed on the ground that no damages had been shown which could be recovered on the bond. The damages set up by the plaintiffs were, (1) the interest on the debt which accrued pending the appeal, which exceeded the penalty of the bond; (2) the balance of the debt which remained unsatisfied after the lands were sold, which largely exceeded the bond. We held that neither of these items could properly be assigned as damages within the meaning of the condition of the appeal bond. In that case, as was observed by the court, no claim was made for the use and detention of the lands pending the appeal, except in the way above stated. The debt was not the debt of Wayne county, and no damage could have resulted from the stay of execution except the delay in the sale, as no personal judgment could have been rendered against the county for the debt, and of course no execution could have been issued against it. This case does not decide the precise question now before us, because there was no party before the court who was personally liable for the debt, and no claim was made for intermediate rents and profits, or for use and detention of the land. In view of the authorities, therefore, as far as they go, if the bond in the present case is to be regarded as importing nothing more than the bond prescribed by the statute, it is clear that it did not operate as security for the original decree, nor for the interest which accrued pending the appeal; nor, by consequence, for the balance of these amounts, or either of them, after applying the proceeds of the mortgaged property. The item of $530 costs unpaid by the defendants in the original foreclosure suit, come under the same head, being part of the original decree, to pay which the lands were ordered to be sold. The only ground of recovery upon the bond could be, (1) the depreciation of the property in market value pending the appeal; or (2) its deterioration by waste, or want of repair, or the accumulation of taxes or other burdens; or (3) the use and detention of the property pending the appeal,—that is, the rents and profits; or (4) the nonpayment of the costs of the appeal, which accrued in this court; but the special verdict does not find that these costs were unpaid. If depreciation in market value can ever be laid as cause of legal damages on a bond in error, (which we greatly doubt,) it cannot be done in this case, because it is found by the special verdict that the property considerably increased in value pending the appeal. Deterioration by waste, etc., is a very different matter; but that is equally out of question in this case, as no deterioration is shown. The defendants paid the taxes and insurance, and kept the property in repair. The principal question for consideration, therefore, is, whether the plaintiffs were entitled to recover the rents and profits, or damages for the use and detention, as it is otherwise called. We have seen that, even in ejectment, it has at least been questioned by this court whether the bond in error covers rents and profits accruing pending the writ. And yet these is a material difference between the case of ejectment and the suit for the foreclosure of a mortgage. The difference is this: in ejectment the property of the land is in question, and if the plaintiff has the right, he is entitled to immediate possession and to the perception of the rents and profits, which belong to him, and for which the defendant in possession is accountable to him. Every dollar, or dollar's worth, is so much of the plaintiff's property of which he is deprived. And the same is true in dower. But in the case of a mortgage, the land is in the nature of a pledge; and it is only the land itself—the specific thing—which is pledged. The rents and profits are not pledged: they belong to the tenant in possession, whether the mortgagor, or a third person claiming under him. This is not only the common law, but it is the express statute law of Nebraska, which declares that 'in the absence of stipulations to the contrary, the mortgagor retains the legal title and right of possession.' The plaintiff, in this case, was not entitled to possession, nor to the rents and profits. His foreclosure suit did not seek possession, but sought a sale of the specific thing, the land. In such a case, until the litigation is ended, it doth not appear that there must be a sale, or even that the plaintiff is entitled to a sale. The defendant in possession is entitled to redeem the land until a sale is made, and until then he is entitled to the rents and profits, which belong to him, as of right. The taking of the rents and profits prior to the sale does not injure the mortgagee, for the simple reason that they do not belong to him. Waste,—that is, destruction or injury to the land itself,—as before stated, is an injury to the mortgagee. It diminishes the value of the pledge; and for such injury no doubt he might recover on the appeal bond. Other deteriorations, such as occur by want of repairs, accumulation of taxes, fires not covered by reasonable insurance, and the like, probably might also be fairly covered by the bond. But perception of rents and profits is the mortgagor's right until a final determination of the right to sell, and a sale made accordingly. The mere delay of the sale for the purposes of an appeal does not operate to the legal injury of the mortgagee. It does not suspend execution for the debt; he has no right to such an execution by the decree of foreclosure and sale. It is not a decree against the person, and cannot be enforced by an execution against goods and lands generally. It is simply a decree for the sale of the land mortgaged, in order that the proceeds may be applied to the debt. The amount due is ascertained by the decree, it is true, but only for the purpose of determining the amount of charge on the land. The debt may be prosecuted by a personal action against the debtor, and this may be the defendants in the suit or some other person. The rule of court by which a personal decree may, in some cases, be entered up against the mortgagor for the residue of the debt, after the proceeds arising from the sale of the land have been applied, is a recent rule intended to obviate the necessity of a separate action. It has not changed the essential nature of the decree for foreclosure and sale. It often happens that the debt is not fully ascertained when a decree for sale and foreclosure is made; as where there are many outstanding bonds which have to be called in and verified. The sale in such cases is frequently made in advance, and the proceeds brought into court for distribution among those who may appear to be entitled thereto; all of which shows that a decree of foreclosure is a very different thing from a personal decree or judgment for the debt. As it is the specific thing, the land itself, and not the rents and profits, that constitutes the pledge, the delay of sale caused by the appeal, as before said, deprives the mortgagee of no legal right. It may be an incidental disadvantage or inconvenience, but in our judgment it is not a legal damage contemplated by the appeal bond. We are aware that a contrary view has sometimes been taken at the circuit; but upon a full consideration of the subject we have come to the conclusion now expressed. The chances of actual deterioration and waste in certain classes of property are so great that a bond in considerable amount may well be required, and if actual deterioration and waste supervenes, the amount may properly be recovered. In addition to these general considerations, a careful examination of the twenty-ninth rule will show that in cases like the present it does not, in terms at least, contemplate security for the use and detention of the property pending the appeal. The words are 'indemnity in all such cases [where the property in controversy necessarily follows the event of the suit] is only required in an amount sufficient to secure the sum recovered for the use and detention of the property, and the costs of the suit, and just damages for delay,' etc. 'The sum recovered for use and detention,' here referred to, means the sum recovered in the original judgment or decree, such as damages and mesne profits in ejectment, damages in dower, and replevin, etc., and the phrase 'just damages for delay,' refers to those damages arising from the delay occasioned by the proceedings in error or appeal, which are properly a legal damage to the party delayed. We are thrown back, therefore, to a consideration of the nature of the particular case, to ascertain what those legal damages properly are. The words 'use and detention' do not assist us, as they relate to a cause of recovery in the original judgment. There is another consideration which relieves the conclusion which we have reached from any supposed hardship or injustice to mortgagees. Courts of equity always have the power, where the debtor is insolvent, and the mortgaged property is an insufficient security for the debt, and there is good cause to believe that it will be wasted or deteriorated in the hands of the mortgagor, as by cutting of timber, suffering dilapidation, etc., to take charge of the property by means of a receiver, and preserve not only the corpus, but the rents and profits for the satisfaction of the debt. When justice requires this course to be pursued, and it is resorted to by the mortgagee, it will give him ample protection. There is no necessity, therefore, in order to protect him from injury, that a party, in order to have the benefit of an appeal, should be obliged to give security to account for the intermediate rents and profits of his own property. We have devoted so much space to a consideration of the principal question that we must dismiss the other point in a few words. The plaintiffs contend that the bond in terms requires the defendant to respond for the 'use and detention' of the property covered by the mortgage during the pendency of the appeal. As the judge had no authority to require such a condition to be inserted in the bonds, and probably was not aware of its insertion in this case, and as a party ought not to be deprived of his right of appeal upon the terms which the law prescribes, we should be very reluctant to hold that this was a voluntary bond, knowingly entered into beyond the requirements of the statute. We should rather hold that it was drawn by attempting to copy the words of the twenty-ninth rule, instead of following the statute, and inadvertently omitting the connecting words. As an appeal bond, or bond in error, is a formal instrument required by the law and governed by the law, and has, by nearly a century's use, become a formula in legal proceedings, with a fixed and definite meaning, and as the important right of appeal is greatly affected by it, we think that it is not allowable, in practice, by a change in its phraseology, to give to it an effect contrary to what the statute intended. It would be against the policy of the law to allow such deviations and irregularities to creep in. We think the rule followed in some of the states is a sound one, that if the condition of an appeal bond, or bond in error, substantially conforms to the requisitions of the statute, it is sufficient to sustain it, though it contain variations of language; and that if further conditions be superadded, the bond is not, therefore, invalid, so far as it is supported by the statute, but only as to the superadded conditions. See Sanders v. Rives, 3 Stew. (Ala.) 109; Gardener v. Woodyear, 1 Ohio, 170. We are award, as shown by the citations on the plaintiffs' brief, that official bonds, and bonds given to the government for the purpose of enjoying certain offices or privileges, and perhaps some others subject to like reason, have often been sustained as contracts at common law, voluntarily entered into, where they have not conformed to the statutory requirements, and would have been insufficient and ineffectual for the purposes of a recovery, if those requirements had been applied to them. We do not think that this case fairly belongs to that class of cases. Had the bond now under consideration so entirely departed and varied from the statute that it could not have been sustained with the effect of an ordinary appeal bond, the question would then more properly have arisen, whether, on the one hand, it might not be sustained as a bond at common law, or, on the other, declared utterly void. Our conclusion is that, as no damage or cause of action appeared by the verdict of the jury, which could authorize a judgment for the plaintiffs, the judgment of the circuit court must be reversed and the cause remanded, with instructions to render judgment for the defendants below. MILLER, J., dissenting. The decision of the court, with the grounds on which it is based on this case, is so wide a departure from the former practice in similar cases, and is likely to work so much injustice in future, that I feel it to be my duty to dissent and to give the reasons for it. I am at a loss to see the value of the learned search into the practices and precedents of the English law in writs of error and appeals, and deem it only necessary to say that in our system the right to a writ of error and to an appeal depends wholly upon statutes granting that right, and not upon any principle of the common law, nor upon any power in any court to review the decisions of any other court which is not also the creation of positive statute, and which, in the courts of the United States, must necessarily depend upon an act of congress. So, also, the mode of exercising this right, the conditions on which the writ of error or appeal may be had, and the effect of the writ on the progress of the case, are all prescribed by statute. A striking illustration of this is in the fact that every writ of error or appeal, once allowed, transferred the case itself, its record, and all proceedings under it, in the English courts, into the reviewing tribunal, and left nothing in the inferior court on which it could act. The acts of congress proceed upon a wholly different principle. They allow a party to take an appeal or writ of error, which does not remove the record of the case into the appellate court, but which may be heard there upon the transcript of the record, the original remaining in the inferior court. Unless the plaintiff in error takes other steps which the law prescribes, the court which rendered the judgment complained of can proceed to execute its judgment and enforce its decree in favor of the successful party, though the case be pending in the appellate court. In fact, unless the other steps mentioned be taken, a valid sale of the property of the plaintiff in error may be made in the very moment in which the appellate court is deciding to reverse the judgment on which it is sold. It is this other step, then, which the party appearing may take, and which totally suspends the power of the inferior court to proceed, that is wholly and absolutely statutory, which is no part of the common law, and which is here for consideration in this case, and which should be decided alone on the language and meaning of the statute. That step is the giving of a bond which, because it has the effect of suspending the action of the inferior court, is called a supersedeas bond, in analogy to the effect of a writ of supersedeas in the English law, from the superior to the inferior court. The law of this subject is found in section 1000 of the Revised Statutes: 'Every justice or judge signing a citation or any writ of error shall, except in cases brought up by the United States, or by direction of any department of the government, take good and sufficient security that the plaintiff in error, or the appellant, shall prosecute his writ or appeal to effect; and if he fail to make good his plea, shall answer all damages and costs, where the writ is a supersedeas and stays execution, or all costs only where it is not a supersedeas as aforesaid.' As thus stated in the Revision, the law is the result of the act of September 24, 1789, § 22, and the amendment to that section by the act of December 12, 1794. 1 St. 84, 404. It has never been doubted under these statutes that the appealing party could have his election to make his writ of error operate as a supersedeas or not, and that the amount of security to be given would depend very much on this choice. If he did not wish to stay execution, he was only required to secure payment of the cost of the appeal. If he did wish to stay execution, he must give bond to answer all damages as well as costs, so that both the condition of the bond to be given and the amount of it must depend on the effect it had on further proceedings in the inferior court. The decisions of this court, and the practice of the judges under it, are given with reasonable accuracy in the opinion of the majority, from the date of the last of these statutes until the adoption of rule 29 of this court in 1867. The case of Rubber Co. v. Goodyear, decided in that year, (6 Wall. 156,) and some decided previously, had shown great oppression in exacting security in an excessive amount to stay execution in cases where but little damage could accrue to the appellee, because, as in case of proceedings in rem, where there was no personal liability, and there could be no loss except from the delay, and in cases of mortgage foreclosures, where there could be no other decree but for a sale of the property. The result was the adoption of the twenty-ninth rule, in which the court undertook to define what damages were allowable in the various classes of cases where the plaintiff in error or appellant obtained a stay of execution or supersedeas pending the appeal. This rule was intended for the guidance of the judges whose duty it was to approve bonds in appeals or writs of error. It was the construction of the members of the court of that day as to the damages which, in the various kinds of cases mentioned in it, the party who had obtained a supersedeas, and had failed in his appeal, was liable, under the act of congress, to pay for his false clamor to the party whom he had unjustly delayed after final judgment against him, for only final judgment can be reviewed in this court. But two of the justices who participated in framing that rule, in which all concurred, remain, and neither of them concur in the construction now given to its by the majority of the court, nor in the construction of the statute under which it was framed. In the case before us the bond sued on was given to suspend an order of sale in a suit to foreclose a mortgage, and the question is whether the bond, which is substantially conformable to the rule of the court, covers the rental value of the mortgaged property during the three years of delay while the case was pending in this court, the mortgaged property having been sold for a sum much below the amount of the debt, for the payment of which it was decreed to be sold, during which time the mortgagor was in possession of the property, which was a public hotel, and the jury find the rent was worth $38,241.75. The opinion of the court is based upon two propositions: (1) That the mortgagor had a right to the use and occupation, even after condition broken, until judicial sale, and was not bound to the mortgagee for their value; (2) that the rule does not make any provision for rent pending the appeal. I do not agree to either proposition. The mortgagor, after condition broken, has no right in law or equity to the possession of the mortgaged property, unless it be so expressed in the mortgage. If it be personal property, it is everyday practice for the mortgagee, after condition broken, to seize the goods and chattels and hold them until the debt be paid, or to sell in satisfaction of the debt. If the mortgagor refuse to deliver possession on demand, the mortgagee can recover it by replevin, and this is often done. How could this be so if the mortgagor's right to possession remained after condition broken? If the mortgaged property be real estate, the common law allowed mortgagor an action of ejectment after condition broken, and this was formerly the usual mode of foreclosure, and is retained in many states to this day. How can there be any right in the mortgagor to possession when this right to recover by an action of ejectment belongs to the mortgagee? The two rights are inconsistent and cannot co-exist. It is conceded that in such case as the present one, where the mortgaged property is insufficient to pay the debt, the mortgagee has the additional equitable right to have a receiver appointed to take possession, and in the end, if necessary, the rents and profits will be appropriated to pay the deficiency. How can all this be done if the mortgagor has the right to continue in possession after he has broken the condition of his mortgage? The truth is, the idea has obtained footing in practice because it is easier to get a decree and sell the property than to dispossess the mortgagor, and hence attempts to do so are rare. But when the mortgagee has pursued the former course and obtained his order of sale,—a decree which is final, for no other decree can be appealed from,—this right of the defaulting mortgagor to further possession of the property, while he transfers the litigation to another court and protracts it for three years, is an inequitable abstraction, founded neither in the common-law rights of the parties nor in any principle of equitable jurisprudence. The whole error is founded on the idea that so long as the mortgagor is permitted to retain possession he is not accountable for rent, and not upon the existence of any right to retain possession. And so the act of congress says, if you wish to appeal this case to another court and go through another trial, instead of appointing a receiver to take possession, we will require of you a bond to secure all damages suffered by the appellee by reason of the delay; and as he is entitled to have the land sold at once for his debt, or to have possession delivered so that rents and profits may be appropriated where they ought to go, you can only suspend the operation of the decree by giving such a bond. If this be not so the grossest injustice must result in many cases. In all cases of insolvent mortgagors the rule, as construed by the court, offers a strong inducement to keep the mortgagee out of his money as long as possible, without interest, or any other compensation for the delay. An insolvent corporation, a railroad company, for instance, makes default in its mortgage bonds which amount to twice the value of the property mortgaged. A decree is obtained for its sale, and before a receiver can be appointed the directors take an appeal, give a small bond, little more than the probable costs, and then use the road for three years, making millions of dollars out of it with which to pay debts subsequent to the mortgage, or distribute among interested parties. No more striking instance of its injustice is needed than the case before us, where an utterly insolvent corporation, with a decree for money largely in excess of the value of the hotel mortgage, is stayed by a bond for $50,000, under which the corporation receives rent, or uses the property to the value of $38,000, while they litigate, without a shadow of right, in this court for three years, and appropriate this $38,000 to their own use, and are not held responsible for this, though the bond expressly mentions 'the use and detention' of the property as one of their liabilities if they fail to make good their plea. But, it is said, the rule only provides for the use and detention of the property before the decree which is appealed from. The language of the rule is that in such cases, mentioning mortgage foreclosure suits specifically, 'indemnity in all such cases is only required in an amount sufficient to secure the sum recovered for the use and occupation of the property, and the costs of the suit and just damages for delay, and costs and interest on the appeal.' That the use and detention here spoken of, like all the other class of damages there mentioned, is such as may thereafter be recovered, is as plain as that the delay and the costs and interest are such as follow, and not such as precede, the decree. It is senseless without it meant this, and such has been the practical construction since its adoption. Not only is this true in practice, but in the leading case, construing this rule for the first time, of Jerome v. McCarter, 21 Wall. 30, the chief justice expressly held that the rent mentioned in the rule is that accuring after the appeal. That was an appeal from a foreclosure decree and a motion for additional security in this court. Mr. Phillips, for appellant, in support of the sufficiency of the bond, cited Roberts v. Cooper to show that nothing could be recovered for the use and detention of the property. But the chief justice, after citing the rule verbatim, said: 'This is a suit on a mortgage, and therefore under this rule a case in which the judge who signs the citation is called upon to determine what amount of security will be sufficient to secure the amount to be recovered for the use and detention of the property, and the costs of the suit, and just damages for the delay and costs and interest on the appeal.' Here is a construction of the rule by a unanimous court in a case where the precise question was presented. The decision of the court in this case overrules it, and establishes in its place a rule which, in many cases, must work injustice, and in no case is equitable; for, in the language of that rule, leaving out the words 'use and detention,' this is a necessary part of the other words, 'just damages for delay.' FIELD, J., concurs with me in this dissent.
107.US.549	The General Assembly of Illinois enacted, March 27, 186D, a statute as follows: "The acts of the city council of the city of Quincy, from June 2, 1868, to August 28, 1868, in ordering alle lection on the proposition to subscribe $100,000 to the capital stock of the Mississippi and Missouri River Air Line Railroad Company, and tilesu bscription of said stock, and all other acts of said council in connection therewith, are hereby legalized and confirmed." In conformity with the vote of the citizens of Quincy cast at such an election, the council had, by an ordinance of Aug. 7, 1868, subscribed for that amount of said capital stock; but neither the election nor the subscription was authorized by law. After the statute took effect, negotiable coupon bonds were, by virtue of It and the ordinance, issued in the sum of $100,000 to tilceo mpany by tilceit y, and the latter received therefor an equal amount of said stock. In a suit by A., a bona Jide holder of coupons detached from the bonds, H1dd, that they are valid obligations of tie city.	On the seventh day of August, 1868, the city council of Quincy, Illinois, in conformity with a vote of the people at an election held under the authority of a resolution adopted by that body on the ninth day of June previous,—passed an ordinance empowering and directing the mayor to subscribe $100,000, payable in city bonds, to the capital stock of the Mississippi & Missouri River Airline Railroad Company, a corporation created under the laws of Missouri. The object of the subscription was to aid in the construction of a railroad (lying wholly within the state of Missouri) from West Quincy north-westerly, connecting, Quincy with the road of that company. The ordinance made it a condition of the issue and payment of the bonds that there should be expended the sum of $50,000 in grading, bridging, and tieing the road, commencing at West Quincy, for a distance of 25 miles; further, that due guaranties be given, before the bonds WERE ISSUED, THAT THEIR PROCEEDS SHOULD BE SO EXPENDED—'THE CITY OF quincy to determine on the compliance with said conditions and issue of bonds in payment of the subscription.' On the succeeding day, August 8, 1868, the city, by its mayor, made the subscription upon the required conditions. Subsequently, March 27, 1869, the general assembly of Illinois passed a statute declaring 'that the acts of the city council of the city of Quincy, from June 2, 1868, to August 28, 1868, in ordering an election on the proposition to subscribe $100,000 to the capital stock of the Mississipi & Missouri River Air-line Railroad Company, and the subscription of said stock, and all other acts of said council in connection therewith, are hereby legalized and confirmed.' 3 Priv. Laws Ill. 1869, p. 376. On the first day of January, 1870, the city council issued to the company, in part payment of said subscription, 50 bonds of the city, of $500 each, numbered from 1 to 50, inclusive; and on May 18, 1870, in further payment, 75 additional bonds, numbered from 51 to 125, inclusive. The remainder, dated July 1, 1870, were issued on November 12, 1870, in further and full payment. Upon each delivery of bonds the city received in exchange an equal amount at par value of the stock of the railroad company. The bonds, negotiable in form, were made payable to the railroad company or bearer at the National Bank of Commerce in New York. They purport to have been issued under and by virtue of the ordinance of August 7, 1868, and of the said act of assembly. The present action was brought to recover the amount of certain coupons of the bonds so issued. The special finding shows that all of the coupons sued on, except one, were of the bonds issued and delivered January 1 and May 18, 1870; that the bonds from which the coupons sued on were taken, with and their coupons, were purchased by plaintiff for value, before maturity, in open market, in the usual course of business, and without notice of any infirmity therein; that the railroad company, from the commencement of the construction of its road, owned and ran its trains from West Quincy into and out of Quincy over the bridge connecting those two places; that the city, for six years after issuing the bonds, paid the successive annual installments of interest, and by an agent, regularly appointed for that purpose, voted its stock at one or more meetings of stockholders held after July 2, 1870. It is not necessary to consider separately the various questions of law upon which there occurred, at the trial, a difference of opinion between the judges. They are all more or less involved in the general inquiry as to the existence of legislative authority for this issue of bonds. 1. Such authority cannot be found in the original charter of the city or in the act of February 16, 1857. The former gives the city council power 'to appropriate money and provide for the payment of the debt and expenses' of the city; the latter authorized that body 'to issue city bonds to any amount not exceeding, at one time, in the aggregate, the sum of $75,000.' These provisions manifestly relate to debts and expenses incurred for ordinary municipal purposes, and not to railroad subscriptions, the authority to make which must be expressly conferred by statute. These bonds upon their face show that they were executed in payment of a subscription of the latter character, and, consequently, purchasers were charged with notice that they were not issued for ordinary municipal purposes under any power conferred by the charter of the city or by the act of 1857. 2. The question of legislative authority is not determinable by that provision of the Illinois constitution of 1870 which saving municipal subscriptions made under existing laws by a popular vote prior to its adoption—declares that—— 'No county, city town, township, or other municipality shall ever become subscriber to the capital stock of any railroad or private corporation, or make donation to, or loan its credit in aid of, such corporation: provided, however, that the adoption of this article shall not be construed as affecting the right of any such municipality to make such subscriptions when the same have been authorized, under existing laws, by a vote of the people of such municipalities prior to such adoption.' This is quite clear in view of the twenty-fourth section of the schedule of that constitution, which provides: 'Nothing contained in this constitution shall be so construed as to deprive the general assembly of power to authorize the city of Quincy to create any indebtedness for railroad or municipal purposes, for which the people of said city shall have voted, and to which they shall have given, by such vote, their assent, prior to the thirteenth day of December, in the year of our Lord one thousand eight hundred and sixty-nine: provided, that no such indebtedness so created shall, in any part thereof, be paid by the state, or from any state revenue, tax, or fund, but the same shall be paid, if paid at all, by the said city of Quincy alone, and by taxes to be livied upon the taxable property thereof: and provided further, that the general assembly shall have no power in the premises that it could not exercise under the present constitution of the state.' The supreme court of Illinois, in Q., M. & P. R. Co. v. Morris, 84 Ill. 412, had occasion to consider the scope and effect of that section. In that case an election was held August 7, 1869, under the authority of a resolution of the city council, to take the sense of the people upon a subscription to the capital stock of the Quincy, Missouri & Pacific Railroad Company, also a Missouri corporation, whose road lay wholly within that state. That election was held without any law authorizing a vote on the question, or empowering the city to become a stockholder in that company. But by an act passed July 1, 1871, after the constitution of 1870 went into operation, the city of Quincy—subject to the terms and requirements embodied in the proposition submitted to the people—was authorized to make, upon such conditions as the city council deemed best, a subscription to the stock of that company, for which the people may have voted prior to the thirteenth day of December, 1869. The act further provided: 'Any election held in said city prior to said day, for the purpose of such vote being taken, and any contract or subscription made, or to be made, by said city to the capital stock of said railroad company in pursuance thereof, and any bonds or other evidence of such indebtedness issued or to be issued by said city, are hereby declared valid.' Under that act the subscription was made and bonds issued; and the controlling question was as to their validity. The court waiving any expression of opinion as to the validity of that part of the act which in terms purported to legalize the election decided that the obvious effect and intent of the twenty-fourth section of the schedule of the constitution was to leave the action of the city of Quincy, in assuming, by vote prior to December 13, 1869, to create indebtedness for a railroad subscription, and the power of the legislature over it, 'unaffected by the constitution of 1870; in other words, to leave the vote and the power of the legislature to confer the right to take stock precisely as they would have been under the constitution of 1848;' that the city council were the corporate authorities of Quincy, upon whom, within the meaning of the constitution of 1848, the legislature could confer, without the intervention of a popular vote, authority to make the subscription and issue the bonds; that section 24 of that schedule embraced a vote taken without authority of law, prior to December 13, 1869, because, had the vote been legal, the language, 'for which the people of said city shall have voted, and to which they shall have given, by such vote, their assent,' would have been unnecessary in view of the proviso in the general section forbidding municipal subscriptions in aid of railroad corporations; lastly, that the construction of the Quincy, Missouri & Pacific Railroad, although no part of it lay in Illinois, was a corporate purpose of the city of Quincy, because thereby its trade and commerce were increased, its property enhanced in value, and its welfare promoted. 3. It remains to inquire as to the authority of the city, under the constitution of 1848, to issue the bonds in question. Its power to do so is denied upon these principal grounds: (1) That the election held under the sanction of the city council, and the action of that body in directing the subscription to be made, were of no legal effect, since the election was held without authority of law, and the subscription was made when there was no legislative authority to create such indebtedness; (2) that without such authority no subscription could be legally made; (3) that the curative act of March 27, 1869, was invalid, because it assumed to impose indebtedness upon the city without the consent of its corporate authorities. The soundness of the first and second of these propositions cannot be disputed, whether reference be had to the decisions of this court or to those of the supreme court of Illinois. But we are unable to concur in the suggestion that the corporate authorities of Quincy did not, after the passage of the act of March 27, 1869, have authority to issue these bonds. In support of the position taken by the city, counsel refer to numerous decisions of the supreme court of Illinois construing the fifth section of the ninth article of the constitution of 1848, which provides that 'the corporate authorities of counties, townships, school-districts, cities, towns, and villages may be vested with power to assess and collect taxes for corporate purposes.' From those decisions the following propositions, among others, may be deduced: That the clause was intended to define as well the class of municipal officers upon whom the power of taxation, for local purposes, might be conferred, as the purposes for which such power could be constitutionally exercised; that by the phrase 'corporate authorities' must be understood those municipal officers who were selected with some reference to the creation of municipal indebtedness, and who were either directly elected by the population to be taxed, or appointed in some mode to which they have given their assent; that the construction of a railroad, at least one within or near a county, township, town, village, or city, was a corporate purpose of such municipality; and that a debt for a subscription to the stock of a railroad corporation, or for bonds in payment thereof, could not be imposed upon a municipal corporation without the consent or against the will of its corporate authorities. But it has been quite as distinctly ruled by the supreme court of Illinois that the city council, and not the voters, of an incorporated city were its corporate authorities, within the meaning of the constitution of 1848, and, if empowered by legislative enactment, could, under that instrument, subscribe to the stock of a railroad corporation, and issue bonds in payment thereof, without submitting the matter to a popular vote. Such was the decision in Q., M. & P. R. Co. v. Morris, where the court reaffirmed the ruling upon this point in Keithsburg v. Frick, 34 Ill. 421, 422. In the latter case, a subscription made by a town to the capital stock of a railroad corporation—without authority of law, as was alleged—was, by an act passed after the town was incorporated under a special charter, declared to be legal, and bonds authorized to be issued therefor. The court said: 'It is by no means a necessary element in these subscriptions that there should be a vote of the inhabitants of the town or city authorizing them. It is competent for the legislature to bestow the power directly on the corporation without any intermediary, as they did in this case.' In Marshall v. Silliman, 61 Ill. 225, the right of the legislature to grant such an authority to the trustees of an incorporated town was conceded. And in Williams v. Town of Roberts, 88 Ill. 21, the court, speaking by Chief Justice SCHOLFIELD, said: 'County boards, such as boards of supervisors, county commissioners, and the municipal authorities of incorporated cities, towns, and villages, may, when empowered so to do by proper legislation, subscribe to the capital stock of railroad corporations without first submitting the question to the electors of the municipality. They are elected as representatives of the electors, and the-oretically, in appropriate cases, their acts are the acts of those they represent. Hence it has been held, where a vote of the electors has been required as a precedent condition to the making of a subscription for stock in a railroad company, and the law prescribing the mode of calling and holding the election has not been observed, inasmuch as the legislature might have empowered the municipal authorities to make the subscription without first submitting the question to the electors, it may, by a subsequent enactment, declare the non-compliance with the law in the holding of the election of no consequence, and validate the subscription; in other words, validate the subscription without reference to the election. This, however, it will be observed, is upon the theory that power to make the subscription does not in any degree necessarily depend upon a vote of the electors of the municipality upon that question, but solely upon the will of the legislature.' The authorities to which we have referred sustain the judgment against the city. This case is clearly distinguishable from those in which the legislature has attempted to impose upon a municipal corporation, without the consent of its corporate authorities, an indebtedness for subscription to the capital stock of a railroad corporation. The cases mainly relied on by counsel for the city are those in which certain officers of limited authority were, in terms or in effect, required by legislative enactment to issue bonds or incur indebtedness in the name of a municipality, without the the consent, expressed in legal form, of those who were, in the constitutional sense, its corporate authorities. Here there can be no question but the city council are the corporate authorities of Quincy. And there is no ground whatever upon which to rest the suggestion that the indebtedness was created without their consent. In no just sense were they compelled to issue bonds in exchange for stock in the railroad company. If, as claimed by the city, the act of March 27, 1869, was inoperative in so far as it assumed to legalize and confirm what had been previously done without the sanction of the law, nevertheless by that act it was intended to confer upon the city council power, in execution of the expressed will of the voters, to issue bonds to the amount of $100,000 for stock in this railroad company. The vote of the electors, we have seen, was not essential to the validity of bonds issued, under legislative sanction, by the corporate authorities of the city. The city council was not required or directed, but only empowered, to proceed as if they had been originally invested with authority to make the subcription. The legislature, in substance, declared, as it might constitutionally have done, that the corporate authorities of the city had its consent to issue bonds to be exchanged for stock in the railroad company. If the corporate authorities could have been compelled by legal proceedings to issue the bonds, that is only another form of saying that the curative act was constitutional, and, consequently, that the bonds are valid. If, however, they could not have been so compelled, then the execution and delivery of the bonds, under the authority of the act of March 27, 1869, was a voluntary creation of indebtedness for a corporate purpose by the corporate authorities of the city. What has been said disposes of all the questions certified, including that one relating to the coupon of a bond delivered to the railroad company after the constitution of 1870 went into effect. In Q., M. & P. R. Co. v. Morris all the bonds there involved were executed and issued under an act passed in 1871. They were sustained upon the ground that the validity of that act depended upon the power which the legislature possessed under the constitution of 1848. That decision, it would seem, determines the present case as to the coupon of the bond delivered in November, 1870. The judgment is affirmed.
108.US.184	1. A statute which authorized a municipal corporation "to obtain money on loan on the faith and credit of said city for the purpose of contributing to works of internal improvement," is not repealed by implication by a subsequent statute which, reciting that doubts had arisen respecting bonds theretofore issued, enacted that "all bonds heretofore issued by the constituted authorities of the city are valid, and from and after the passage of this act, the mayor and aldermen of the city, upon a recommendation of a public meeting of the citizens called for that -purpose, shall have power and authority to cause bonds to be issued and disposed of in such manner as they may direct, for purposes of internal improvement." 2. statute authorizing a municipal corporation to obtain money on loan on the faith and credit of the city, for the purpose of contributing to works of internal improvement, authorizes the municipality to guarantee the payment of the bonds of a railway company.	The Savannah, Albany & Gulf Railroad Company was a corporation of Georgia, authorized to construct and operate a railroad, the principal and beginning point of which was the city of Savannah. That city was, in fact, owner of more than one-half of its capital stock, which it had subscribed in pursuance of law to aid in its construction. For purposes of construction—that is, partly to pay debts incurred for construction then made, and partly to pay for future improvements—the railroad company in 1859 made an issue of its bonds, in the usual form, payable to bearer 20 years after date, amounting in the aggregate to $300,000, bearing interest at the rate of 7 per cent. per annum. On each of this series of bonds there was indorsed the following: 'State of Georgia. For value received, the mayor and aldermen of the city of Savannah and hamlets thereof, hereby, as authorized by a public meeting of the citizens thereof, held on the fourteenth day of May, 1859, guaranty the payment of the within bond, principal and interest, as the same may become due, according to the tenor thereof. Witness the hand of the mayor, with the seal of said corporation affixed. [Seal of City.] 'THOMAS M. TURNER, Mayor. 'Attest: EDWARD G. WILSON, Clerk of Council.' The bonds were issued with this guaranty indorsed, and were purchased in open market for value. The present action was brought by the defendant in error to enforce the liability of the city of Savannah upon this guaranty. And it is not denied that the city is liable upon it, if at the time it was made there was authority of law for the city to bind itself in that form for such purposes. The judgment of the circuit court affirms this liability, and is sought to be reversed, upon this writ of error, for that cause. The fifth section of an act, which took effect December 27, 1838, entitled 'An act to extend the limits of the city of Savannah, and to authorize the corporate authorities of said city to borrow money for works of internal improvement,' authorizes the mayor and aldermen 'to obtain money on loan, on the faith and credit of said city, for the purpose of contributing to works of internal improvements.' This provision is relied on as conferring authority for the guaranty in question. It is claimed, however, on behalf of the plaintiff in error, that this provision of the act of 1838 was not in force at the date of the guaranty, having been repealed by an act of March 4, 1856. Wilson, Dig. 526. This act expressly repeals only such acts as conflict with it, and the repeal, if effected, must be, therefore, by implication. The eighth section of the act of 1856 is supposed to have wrought this result. It is as follows: 'And whereas, doubts have been entertained whether certain bonds issued and disposed of by the city of Savannah for internal improvements were legal and valid, therefore, be it further enacted, that all bonds heretofore issued by the constituted authorities of the city of Savannah are hereby declared legal and valid, and from and after the passage of this act the mayor and aldermen of the city of Savannah, and the hamlets thereof, upon the recommendation of a public meeting of the citizens of Savannah, called for that purpose, shall have power and authority to cause bonds to be issued and disposed of in such manner as they may direct, for purposes of internal improvement, which bonds, so issued, shall be legal and valid.' Whether the latter repeals the former law depends on whether the two are inconsistent; and, in the present instance, that depends on whether it is manifest from the words of the enactments that both cover the same ground, and that the latter was intended to be a substitute for the former. The act of 1856 relates entirely to the issue of bonds by the city of Savannah; the act of 1838 does not specify bonds at all as a mode of obtaining money on loan, on the faith and credit of the city. If it be assumed that the only mode by which that could be done under the act of 1838 was by issuing bonds, it might then be argued that the two acts covered the same subject, and the latter was designed to supersede the former. But to assume that construction of the act of 1838 to be correct, is to beg the question at issue, which is, whether that act requires the issue of bonds as the exclusive mode of obtaining money on loan on the faith and credit of the city. For if it does not, there is no inconsistency between the two statutes, and the act of 1838 is not repealed. Whether it be repealed, then, depends on what it means; and if it authorizes a guaranty such as that sued on, then it is not repealed; unless it might be supposed that the term 'bonds,' used in the act of 1856, was generic and not technical, and was designed to embrace every form of obligation whereby the city might extend the aid of its credit to purposes of internal improvement. In that event, the repeal of the act of 1838 might be affected by conceding that the act of 1856 was large enough to embrace every case, even that of a guaranty, which might have been included in the act of 1838. But conceding, as we are disposed to do for the purposes of this case, that the term 'bond,' as used in the act of 1856, is to be taken in a strict sense, as confined to direct municipal obligations in the usual form of securities known as such, then we are clear that the act of 1838 is not repealed by any necessary implication, because it is not confined to the case of bonds of that description; and the question remains whether it fairly includes that of an obligation, such as the guaranty sued on. The argument for the plaintiff in error moves in a circle. It is, that the act of 1838 does not confer authority to make the guaranty, because it is repealed; and that it is repealed, because it does not confer authority to make a guaranty. The language of the act of 1838 is broad and unqualified. It confers upon the mayor and aldermen plenary power 'to obtain money on loan, on the faith and credit of said city, for the purposes of contributing to works of internal improvement.' The money paid for the guarantied bonds was obtained on loan, and upon the faith and credit of the city, and it was for the purpose of contributing to works of internal improvement. The fact that it was not advanced directly to the city, but, upon its assurance of repayment, to the railroad company, is not a departure even from the letter of the law, much less its meaning; nor does the fact that the money was advanced partly on the credit of the railroad company diminish the presumed reliance of the purchaser upon that of the city, with which it was joined. It is difficult to conceive of language more comprehensive than that employed, to embrace every form of security in which the faith and credit of the city might be embodied; and that in such cases it is not important to the character of the transaction that the money is obtained in the first instance by the railroad company, upon the credit of the city, was directly ruled in Rogers v. Burlington, 3 Wall. 654-666, and affirmed in Town of Venice v. Murdock, 92 U. S. 494-501. If the city of Savannah had, by virtue of an arrangement with the railroad company, received from the latter its bonds, and had itself, having indorsed the guaranty in suit, delivered them after sales to purchasers, and, receiving the money, had paid it over to the railroad company as a contribution to purposes of internal improvement, the transaction could not have been made the subject of a cavil, as unauthorized by the act of 1838; and yet this is the precise legal equivalent of the transaction as made. We have no hesitation in saying that it is equally embraced within the meaning of that statute, and that the act in question was in force at the date of the guaranty and accordingly governs it. The substance of the transaction was that, in consideration of the money advanced to the railroad company as a loan on the faith and credit of the city, the latter required the railroad company to indemify it against loss on that account,—a precaution which no implication in the statute forbids,—and that result was accomplished by the form of the obligation, by which the railroad company became the principal debtor, and the city of Savannah guarantor merely of its bonds. It does not detract from the force of this conclusion that the guaranty recites that it was authorized by a public meeting of the citizens thereof, as if it were the case of bonds issued under the act of 1856, which required the recommendation of such a meeting. But if the fact is immaterial, the recital is not injurious. And the official record of the transactions shows that such a meeting was held for the purpose of quieting doubts, and not to raise them. The authorities of the city at that time were only anxious to omit nothing which the most critical might regard as important in securing for its obligations all the weight and value properly belonging to an unquestionable pledge of its faith and credit; and certainly now, after the lapse of 20 years, in which no such question has been raised, it would, in the language of Mr. Justice GRIER, in Mercer Co. v. Hacket, 1 Wall. 83-94, 'be contrary to good faith and common justice to permit them to allege a newly-discovered construction of an equivocal power.' Van Hostrup v. Madison City, 1 Wall. 291; Meyer v. City of Muscatine, 1 Wall. 391; James v. Milwaukee, 16 Wall. 159. In our opinion the act of 1838 authorized the guaranty made by the city of Savannah upon the bonds of the railroad company, and it constitutes a valid and subsisting liability. This disposes of the only question in the case deserving serious consideration; and the judg ment of the circuit court is, therefore, affirmed.
106.US.613	A suit, the parties thereto being citizens of the same State, was brought in a court thereof, for moneys alleged to be due to the complainant under a contract whereby certain letters-patent granted to him were transferred to the defendant. Held, that the suit, not involving the validity or the construction of the patents, is not one arising under a law of the United States, and cannot be removed to the Circuit Court.	'The dispute in this case does not arise under any act of congress, nor does the decision depend upon the construction of any law in relation to patents. It arises out of the contract stated in the bill, and there is no act of congress providing for or regulating contracts of this kind. The rights of the parties depend altogether upon common-law and equity principles.' The case of Hartell v. Tilghman, 99 U. S. 547, is also in point. In that case Hartell, the complainant, alleged that he was the original patentee and inventor of a process for cutting and engraving stone, glass, metal, and other hard substances by what is known as the sand-blast process; that the defendants had paid him a considerable sum for machines necessary in the use of his invention, and had also paid him during several months the royalty which he asked for the use of the invention described in and secured by his patent; that the defendants refused to do certain other things, which the complainant charged to have been a part of the consideration of the contract between them, whereupon he had forbidden them further to use his invention, and that the defendants had disregarded this prohibition. The bill prayed for an injunction, an account of profits, and damages. The defendants admitted the validity of the patent, their use of it, and their liability for its use under their contract with the complainant, and offered to perform all that the contract required them to perform. All the parties were citizens of the same state. Upon this case the question of the jurisdiction of the United States courts was raised, and this court, after a review of several cases bearing on the subject, held that the suit was not one arising under the laws of the United States, and that the circuit court had no jurisdiction of the case, and reversed its decree, and remanded the cause, with directions to dismiss the bill. The argument against the jurisdiction in the case under consideration is stronger than in the two cases above referred to. In each of these cases the object of the complaint in filing the bill was to go behind the agreement under which the defendant had contracted for the right to use the complainant's invention, and to obtain an injunction against the defendant as an infringer. In this case the appellee admits the contract to be in force, and simply seeks to compel its performance. The following cases cited by this court in Hartell v. Tilghman are in accord with the views we have expressed: Goodyear v. India Rubber Co. 4 Blatchf. 63; Merserole v. Union Paper Collar Co. 6 Blatchf. 356; Blanchard v. Sprague, 1 Cliff. 288; Hill v. Whitcomb, 1 Holmes, 317. From the conclusions reached by us, it follows that the decree of the circuit court remanding the cause to the state court must be affirmed.
108.US.543	An act of the State of Illinois authorizing subscriptions by municipalities to the stock of a railroad company required the town clerks to transmit to county clerks transcripts of votes authorizing subscriptions, and the amount voted and the rate of interest to be paid, and after issue of bonds, certificates of the amount of bonds issued, the rate of interest thereon, and the number of each bond. It also required the county clerk, after the execution and delivery of the bonds, to annually compute and assess upon the township enough to pay the accruing interest and cost of collection, and a fund for redemption. A subsequent statute authorized holders of such bonds to register them with the State auditor of public accounts, and made it the duty of the auditor to estimate the amount of assessment necessary to meet the interest, &c., and to inform the county clerk: Held, That the object of each act was to provide a mode for information to reach the county clerk as to the amount of money hecessary to be raised for these purposes, and that certified copies of judgments recovered in the Circuit Court of the United States by such bondholders upon their bonds lodged with the county clerk, had the same force and effect as information derived in the modes provided by law, and made it the duty of the clerk to proceed with the computation and assessment of the tax. Where a State court enjoined a municipal officer from enforcing a tax to pay a municipal obligation, and subsequently to the injunction a judgment for payment of the interest which it was agreed should be made by the assess. ment and collection of the tax was recovered in a circuit court of the United States, the injunction cannot stand in the way of the enforcement of the tax by the circuit court, to carry its judgment into execution. When distinct causes of action are united in one suit for convenience, and to save expense, and the sum at issue in some of the causes is insufficient to give jurisdiction, and in others is sufficient to give it, those cases in which it is insufficient will be dismissed for want of jurisdiction, and those in which it is sufficient will be retained for adjudication.	On the fifth of April, 1872, the town of Amboy, Lee county, Illinois, issued a series of bonds in payment of a subscription voted by the voters of the town to the capital stock of the Chicago & Rock River Railroad Company. Both the subscription and bonds were authorized by the charter of the railroad company, approved March 24, 1869. Sections 12 and 13 of this charter, which alone need be considered, are as follows: 'Sec. 12. It shall be the duty of the clerk of any such city, town, or township, in which a vote shall be given in favor of subscription, within 10 days thereafter, to transmit to the county clerk of their counties a transcript or statement of the vote given, and the amount so voted to be subscribed, and the rate of interest to be paid: provided, that when elections shall be held and bonds issued, as aforesaid, it shall be the duty of the clerk of such town or township to file with the county clerk of their respective counties, within 10 days after the issuing of said bonds, certificates of the amount of bonds issued, and the rate of interest payable thereon, and number of each bond.' 'Sec. 13. It shall be the duty of the county clerk of said county, annually, after the execution and delivering of such bonds aforesaid, to compute and assess upon all the taxable property returned by the assessor of such city, town, or township, a sum sufficient to pay the interest and costs of collection and disbursements upon all bonds so issued by the respective cities, towns, or townships; which tax shall be extended upon the collector's books as other taxes are, and, when collected, shall be paid to the treasurer of the county; and such city, town, or township shall, when providing for the levying and collecting of other taxes, also assess upon the property of such city, town, or township any rate not exceeding 3 per cent. in any one year upon the assessment, to provide a fund for the redemption of the principal and interest of such bonds as or when they become due—said taxes to be levied and collected as other taxes are; but no tax shall be computed, assessed, or collected, or any interest paid, to be applied upon said bonds, unless such bonds have been executed and delivered.' By an act of the general assembly of Illinois 'to fund and provide for paying the railroad debts of counties, townships, cities, and towns,' passed and in force April 16, 1869, the holders of that class of securities were authorized to register them in the office of the auditor of public accounts of the state. Sections 4 and 5 of that act are as follows: 'Sec. 4. When the bonds of any county, township, city, or town shall be so registered, the state auditor shall annually ascertain the amount of interest for the current year due and accrued and to accrue upon such bonds, and from the amount so ascertained he shall deduct the amount in the state treasury placed to the credit of such county, township, city or town, as herein provided and directed; and from the basis of the certificate of valuation of property heretofore provided to be transmitted to him, or, in case no such certificate shall be filed in his office, then, upon the basis of the total assessment of such county, township, city, or town for the year next preceding, he shall estimate and determine the rate per centum on the valuation of property within such county, township, city, or town requisite to meet and satisfy the amount of interest unprovided for, together with the ordinary cost to the state of collection and disbursement of the same, to be estimated by the auditor and treasurer, and shall make and transmit to the county clerk of such county, or to the proper officer or authority whose duty it is or shall be to prepare the estimates and books for the collection of state taxes in such county, township, city, or town, a certificate stating such estimated requisite per centum for such purpose, to be filed in his office, and the same per centum shall thereupon be deemed added to and a part of the per centum which is or may be levied or provided by law for purposes of state revenue, and shall be so treated by such clerk, officer, or authority in making such estimates and books for the collection of taxes; and the said tax shall be collected with the state revenue, and all laws relating to the state revenue shall apply thereto, except as herein otherwise provided. 'Sec. 5. The state shall be deemed the custodian only of the several taxes so collected and credited to such county, township, city, or town, and shall not be deemed in any manner liable on account of any such bonds; but the tax and fund so collected shall be deemed pledged and appropriated to the payment of the interest and principal of the registered bonds herein provided for, until fully satisfied.' When the bonds of the town of Amboy were issued, the town clerk did not transmit to the county clerk the statement required by section 12 of the charter of the railroad company, but the president of the company caused them to be registered in the office of the auditor of public accounts in accordance with the provisions of the act of 1869. During the years 1872 and 1873 the auditor made the proper certificate under the registry law for the taxes to meet the interest for those years, and the taxes were extended by the county clerk in due form on the tax-collector's books, but before the collections were made certain tax-payers of the town obtained from the circuit court of Lee county an injunction against the county clerk, the county collector, and the town collector, restraining them from collecting the taxes that had already been assessed, and also restraining the same parties and the auditor of public accounts of the state from taking any steps for the levy or collection of any other taxes to pay either the principal or the interest of the bonds. After this injunction was obtained, the relators, Fairbanks, Skinner, Thomas, and Wetmore, being severally holders and owners of certain of the bonds and coupons of the town, began separate suits against the town in the circuit court of the United States for the northern district of Illinois, to recover the amounts due them, respectively, on their coupons. These suits resulted in a judgment on the thirteenth of March, 1878, in favor of Fairbanks, for $2,449 damages and $36.12 costs; another, on the twenty-fourth of January, 1878, in favor of Skinner, for $2,018.50 damages and $47.10 costs; another, on the twenty-ninth of November, 1875, in favor of Thomas, for $866 damages and $43.90 costs; and two others in favor of Wetmore,—one on the seventeenth of December, 1875, for $3,836.14 and $50.40 costs, and the other, on the twentieth of June, 1876, for $1,058.33 damages and $31.50 costs. These several judgments remain unpaid, and have all been duly audited and allowed by the auditing board of the town; but the town clerk, whose duty it is to certify to the county clerk, on or before the second Tuesday in August in each year, the amount of taxes to be levied and collected to pay the charges against the town for the current year, refused to certify the judgments, and kept himself concealed so as to avoid the process of the courts. The several plaintiffs then presented their respective judgments to the county clerk, and demanded that he 'compute and assess upon all the taxable property in said town of Amboy a sum sufficient to pay said judgments, and each and every of them, and interest on the same to the date of payment, and costs of suit in each case, together with the costs of collecting and disbursing such taxes, and to extend such taxes upon the collector's books of said town of Amboy for the year 1879.' This the county clerk refused to do, and thereupon the several judgment plaintiffs united as relators in an application to the circuit court of the United States for a mandamus requiring him to comply with their demands. To this application the county clerk answered, setting up defenses, as follows: (1) That the town clerk had never transmitted to the county clerk the statement required by section 12 of the charter of the railroad company; (2) that the town clerk had never certified to the county clerk the allowance of the judgment by the board of auditors of the town; (3) that all taxes to pay principal and interest on the bonds covered by the several judgments of the relators, certified by the auditor of public accounts, under the registry law, had been duly extended on the tax-collector's books, and their collection enjoined by the circuit court of the county; and (4) that he had himself been enjoined by the circuit court of the county from extending any taxes whatever on the tax-books to pay the principal or interest of the bonds held by the relators. Upon demurrer to this answer, judgment was given in the court below awarding a writ of mandamus directed to the county clerk and commanding him to extend upon the tax-collector's books of the town, for the year 1879, a sum sufficient to pay each of the several judgments held by the relators, particularly describing the judgments separately. To reverse that judgment this writ of error was brought. We are met at the outset with a motion of the defendants in error to dismiss the writ in this case on the ground that the several judgments proceeded upon below cannot be united to give us jurisdiction, and the amount due on any one of them does not exceed $5,000. The rule is settled, as stated more than once at the present term, that when distinct causes of action, in favor of distinct parties, are united in one suit, and distinct judgments are rendered for or against the several parties, their judgments cannot be joined to give us jurisdiction. Ex parte Baltimore & O. R. Co. 106 U. S. 5; [S. C. 1 SUP. CT. REP. 35;] Farmers' Loan & Trust Co. v. Waterman, Id. 265; [S. C. 1 SUP. CT. REP. 131;] Adams v. Crittenden, Id. 576; [S. C. 1 SUP. CT. REP. 92;] Schwed v. Smith, Id. 188; [S. C. 1 SUP. CT. REP. 221.] In the present case distinct causes of action, in favor of distinct parties, were united, for convenience and to save expense, in one suit, and distinct orders were made in favor of each one of the several judgment creditors. The proceeding was analogous to a crediter's bill brought by distinct creditors upon distinct judgments to reach the property of their common debtor. That was the case of Schwed v. Smith, supra, in which we held, following Seaver v. Bigelows, 5 Wall. 208, that the amount due the several creditors could not be joined to give jurisdiction on an appeal by the defendants. In the present case, the amount due the relators Fairbanks, Skinner, and Thomas, respectively, does not exceed $5,000. As to them, consequently, the writ must be dismissed. But as to the relator Wetmore the case is different. She has two judgments, and the aggregate amount due her, including interest to the time the mandamus was awarded, exceeds $5,000. The matter in dispute with her, therefore, is sufficient for our jurisdiction, and the cause must be retained for adjudication in respect to her rights. This was the form of proceeding adopted in Farmers$h Loan & Trust Co. v. Waterman, supra. Proceeding, then, to the consideration of the case on its merits, we will take up the defenses relied on by the county clerk in the order in which they have been stated. 1. As to the omission of the town clerk to certify the statement required by the twelfth section of the charter. By the judgment of the circuit court, for the enforcement of which the mandamus is asked, the fact of the issue of the bonds and the liability of the town for the payment of the coupons held by the judgment creditor was judicially dedetermined. Section 13 of the charter of the railroad company made it the duty of the county clerk annually, after the issue of the bonds, to compute and assess on the taxable property in the town a sum sufficient to meet the interest as it matured, and provide a sum for the redemption of the principal. The statement of the town clerk under section 12 was not a condition precedent to the computation and assessment of the tax by the county clerk. It was one way of informing the county clerk of his duty, but not necessarily the only way. The law obliged him to make the assessment in due course of business after the bonds were put out, and until they were paid in full. When, therefore, the judgments of the circuit court of the United States were presented to him, he was officially informed that the liability of the town for the payment of the coupons sued for had been judicially established, and it became his duty, under section 13, to compute the tax necessary to pay them, and put it in the way of collection. No further certificate from any town officer was necessary. The issue of the bonds, under which the judgment creditor claimed the right to a tax, was conclusively proven, and that was enough. There is nothing in Springfield & Ill. S. E. Ry. Co. v. County Clerk of Wayne Co. 74 Ill. 27, to the contrary of this. In that case the vote was for a donation by the town to be paid by a tax, and there was no other evidence of the obligation to levy the tax than the vote of the electors. Under such circumstances, there was reason for holding that the only legitimate evidence that could be produced to the county clerk of the fact of the vote was the certificate, which had been specially provided for in the act authorizing the donation to be made. Here, however, the bond carried on its face the declaration of the town that the holder was entitled to have the tax assessed and collected for its payment, and whatever was legitmate evidence of the issue of the bond was legitimate evidence of the duty of the clerk to act. The fact of the issue having been conclusively established by the judgment, the presentation of the exemplification of judgment to the county clerk was all that was in law necessary to make it his duty to proceed. 2. As to the certificate of the town clerk that the judgments had been audited and allowed by the town auditors. What has already been said is equally applicable to this branch of the case. The judgment established the legal right of the judgment creditor to have the tax specially provided for by section 13 of the charter of the company computed and assessed by the county clerk without any further action of the town officers. After the issue of the bonds it became the positive duty of the county clerk to compute and assess, in the regular course of business, to the extent that was necessary, the tax that had been contracted for to meet the liability thus incurred. It became, in legal effect, a part of the contract of the town that this should be done, and the judgment of the court establishing the contract was equivalent to a judicial determination that the tax must be levied by the county clerk, unless the judgment was otherwise provided for. Whenever, therefore, it was made to appear to the county clerk in any way that no other provision had been made, it was his duty under the law to proceed with the computation and assessment of the tax. The certificate of the town clerk that the judgment had been allowed by the board of auditors for payment through the means of the annual taxation would have been one way, and, perhaps, the most appropriate way, of furnishing the information which the county clerk needed, but it has nowhere been made the only lawful way. When, therefore, the town clerk refused to make and forward such a certificate, there was no legal impediment to the employment of some other means to give the county clerk notice of what his duty required of him in the premises. The certificate of the town clerk was not in this case any more a condition precedent to the action of the county clerk than it was under the requirements of section 12. 3. As to the certificate of the auditor of public accounts. This, like the certificate of the town clerk, is only one way of informing the county clerk of what his duty under section 13 requires. It is not, any more than the certificate of the town clerk, an indispensable prerequisite to the action of the county clerk. 4. As to the injunction. The relator was not a party to the suit in which the injunction was obtained, and, consequently, is not bound by it. Having established her right to the tax by the judgment of the circuit court in a suit to which the town, in its corporate capacity, was a party, she may use the power of that court to command the assessment and collection of the tax as a means of carrying the judgment into execution, notwithstanding what the tax-payers may have caused to done in some proceeding to which the relator was not a party. The right to the computation and assessment, as well as the collection, of the tax, followed as a matter of law from the establishment of the liability of the town for the payment of the interest, which it was agreed should be made by the assessment and collection of the tax. An injunction against the officers before the judgment against the town was rendered, cannot stand in the way of the enforcement of the tax by the circuit court to carry its judgment into execution. The writ of error is dismissed as to the relators Fairbanks, Skinner, and Thomas, and the judgment of the circuit court awarding the mandamus in favor of Caroline C. Wetmore is affirmed. The cause is remanded, with leave to modify the judgment in such a way as to adapt the command of the writ of mandamus to the circumstances consequent on the delay caused by the pendency of the writ of error in this court.
109.US.608	1. Records and judicial proceedings of each State affecting property or estate within it have in every other State the force and effect which they possess in the State of their origin : but as to similar property or estate situated in another State, they have no greater or other force than similar records or proceedings in the courts of that State. 2. The. probate of a will in one State does not establish the validity of the will as a will devising real estate in another State, unless the laws of the latter State permit it. The validity of the will for that purpose must be determined by the laws of the State in which the property is situated. 3. A transcript of the record of a probate of a will in Virginia, sufficient to pass real estate there, is not proof of the validity of the will in the District of Columbia for the purpose of passing real estate there. 4. In order to pass real estate situated in the District of Columbia, a will must be executed as provided by the laws in force there, and its validity must be established in the manner provided by those laws. 5. Probate of a will in the District of Columbia is evidence of its validity only so far as it affects personal property. As a will devising real estate the instrument itself must be produced, with the evidence of the subscribing witnesses, or if they be dead, or their evidence legally unattainable, with proof of their handwriting. 6. The plaintiffs claimed as heirs of R. They showed a deed by R to S of an estate in the premises for the life of M, but without covenants by S to surrender to R or his heirs, or as to any further interest in R. They also showed that the life estate of S passed by mesne conveyances to the' defendants : ield, that the defendants were not estopped from setting up an adverse superior title.	This was an action of ejectment for a parcel of land in the city of Washington, District of Columbia. On the trial the plaintiffs gave in evidence a conveyance of the premises from the United States to one Robert Moore, executed in June, 1800; and then endeavored to trace title from the grantee through a devise in his last will and testament, bearing date in July, 1803. For this purpose they produced and offered a transcript of proceedings in the hustings court of Petersburg, in the state of Virginia, containing a copy of the will, and of its probate in that court in December, 1804. By the law of Virginia then in force that court was authorized to take the probate of wills, as well of real as of personal estate; and when a will was exhibited to be proved, it could proceed immediately to receive proofs, and to grant a certificate of its probate. Within seven years afterwards its validity was open to contestation in chancery by any person interested; but, if not contested w thin that period, the probate was to be deemed conclusive, except as to parties laboring at the time under certain disabilities, who were to have a like period to contest its validity after the removal of their disabilities. The transcript was offered, not merely as an exemplified copy of the record of the last will and testament of Robert Moore, and of its probate in the hustings court, but also as conclusive proof of the validity of the will, and of all matters involved in its probate. Upon objection of the defendants' counsel, it was excluded, and an exception was taken to the exclusion. This ruling of the court constitutes the principal error assigned for a reversal of the judgment. We think the ruling was correct. Looking at the transcript presented, we find that it shows only that a paper purporting to be the last will and testament of the deceased was admitted to record upon proof that the instrument and the signature to it were in his handwriting. No witnesses to its execution were called, no proof was offered of the genuineness of the signatures of the parties whose names are attached to it as witnesses, and no notice was given to parties interested of the proceedings in the hustings court. As a record it furnishes no proof of an instrument executed as a last will and testament in a form to pass real estate in the District of Columbia. The execution of such a will must be attested by at least three witnesses. It matters not how effective the instrument may be to pass real property in Virginia, it must be executed in the manner prescribed by the law in force in the district to pass real property situated there, and its validity must be established in the manner required by that law. It is familiar doctrine that the law of the place governs as to the formalities necessary to the transfer of real property, whether testamentary or inter vivos. In most of the states of the Union a will of real property must be admitted to probate in some one of their courts before it can be received elsewhere as a conveyance of such property. But by the law of Maryland, which governs in the District of Columbia, wills, so far as real property is concerned, are not admitted to such probate. The common-law rule prevails on that subject. The orphans' court there may, it is true, take the probate of wills, though they affect lands, provided they affect chattels also; but the probate is evidence of the validity of the will only so far as the personal property is concerned. As an instrument conveying real property the probate is not evidence of its execution. That must be shown by a production of the instrument itself, and proof by the subscribing witnesses; or, if they be not living, by proof of their handwriting. So it matters not that the same effect is to be given in the courts of this district to the record of the hustings court, which, by the law of Virginia, can be given to it there; that is, that it is to be received as sufficient to pass the title to real property situated in that state. The question still remains, is the instrument sufficient to pass title to real property in the District of Columbia? If so, it should have been produced and proved in the manner mentioned. If, as stated by counsel, it is on file in the hustings court, and by the law of Virginia cannot be removed, then it should have been proved under a commission, as other instruments out of the state are proved, when it is impossible to compel their production in court. The act of congress declaring the effect to be given in any court within the United States to the records and judicial proceedings of the several states, does not require that they shall have any greater force and efficacy in other courts than in the courts of the states from which they are taken, but only such faith and credit as by law or usage they have there. Any other rule would be repugnant to all principle, and, as we said on a former occasion, would contravene the policy of the provi ions of the constitution and laws of the United States on that subject. Board of Public Works v. Columbia College, 17 Wall. 529. It does not appear that the validity of the will of Moore, as probated in 1804 in the hustings court of Petersburg, was ever afterwards contested in a court of chancery in Virginia. Its probate must therefore be deemed conclusive, so far as that state is concerned, and the will held sufficient to pass all property which can be there transferred by a valid instrument of that kind. But no greater effect can be given out of Virginia to the proceedings in the hustings court. The probate establishes nothing beyond the validity of the will there. It does not take the place of provisions necessary to its validity as a will of real property in other states, if they are wanting. Its validity as such will, in other states, depends on its execution in conformity with their laws; and if probate there be also required, such probate must be had before it can be received as evidence. Authority for these views is found in the cases of McCormick v. Sullivant and of Darby v. Mayer, both reported in 10 Wheat. 192, 465. In the first of them it appeared that by the law of Ohio, before a will devising real property can be considered as valid, it must be presented to the court of common pleas of the county where the land lies for probate, and be proved by at least two of the subscribing witnesses, unless it has been proved and recorded in another state according to its laws; in which case an authenticated copy can be offered for probate without proof by the witnesses. A will devising real property in that state was admitted to probate in the state of Pennsylvania, and this court held that such probate gave no validity to the will in respect to the real property in Ohio, as to which the deceased was to be considered as having died intestate. 10 Wheat. 202, 203. In the second case, which was an action of ejectment for land in Tennessee, the defendant endeavored to trace title to the premises through the will of one Kitts. For that purpose a copy and probate of the will devising the property were produced in evidence, certified from the orphans' court of Baltimore county, Maryland, and admitted against the objection of the plaintiff. This court held that record inadmissible, and in its opinion explained the common law doctrine as to what was legal evidence in an action of ejectment to establish a devise of real property. It stated that the ordinary's probate was no evidence of the execution of the will in ejectment; that where the will itself was in existence and could be produced, it was necessary to produce it; and that when the will was lost or could not be produced, secondary evidence was necessarily resorted to; but that, whatever the proof, it was required to be made before the court which tried the cause, the proof before the ordinary being ex parte, the heir at law having no opportunity to cross-examine the witnesses, and the same solemnities not being required to admit the will to probate, which are indispensable to give it validity as a devise of real property. And the court added that the law of Maryland, with regard to the evidence of a devise in ejectment, was the common law of England, and had been so recognized in decisions of the courts of that state. 10 Wheat. 468, 469. The first of these cases shows that the probate of a will of real property in one state is of no force in establishing the validity of the will in another state. That must be determined by the laws of the state where the property is situated. The second case shows that the proof of a devise of land in ejectment in Maryland (and its law obtains in this district) must be made by the production of the will in court, and evidence of its execution by the subscribing witnesses; or, if the will be lost, or cannot be produced, the proof must be made by secondary evidence of its execution and contents. The plaintiffs contend that they can use the record of the ustings court in Virginia as proof of the genuineness of the instrument, and then supplement that proof by parol evidence that the original was executed by three witnesses, and thus establish it as a will sufficient to pass real estate in the District of Columbia. But in this contention they overlook a material circumstance. It is not sufficient to give effect to an instrument as a will of real property that its genuineness merely be established. Its genuineness must be shown by the witnesses, if they are living, who attested its execution and heard the declaration of the testator as to its character; and, if dead, their handwriting must be proved, as already stated. No other proof will answer; certainly not the probate of the will on ex parte testimony by a tribunal of another state or country. When the record of the will and probate were excluded, the plaintiffs offered parol evidence to show that the copy of the will in the record was a true copy of the original now on file in the hustings court. Upon objection, the evidence was excluded, and we think properly so. The proof of such copy would not have established the validity of the original instrument as a will to pass real property in the District of Columbia. The law of Maryland of 1785, upon which the plaintiff relies, assuming that it is still in force, which may be doubted, was not designed to change the formalities required by the local law for the validity of wills of real property executed in other states, but to give to authenticated copies of such instruments, when recorded or filed with the register there, the same force and efficacy which would attend the originals if produced. Failing to secure the introduction of the record of the hustings court and the parol evidence mentioned, the plaintiffs insisted that the defendants were estopped from asserting an adverse title against them. To support their position they introduced a deed by one Robertson and his wife, Maria, executed in 1839, to one Samuel Redfern, conveying the premises for the life of the said Maria, and then showed conveyances in fee of the property from Redfern to one Fraser, and from Fraser to one John Pickrell, then a devise of the property by him to Anna Pickrell, and by her to the defendants; and that the plaintiffs are heirs of Robertson and wife, who are dead, Maria having died in 1873; and they contended that the conveyance by Robertson and wife of a life estate to the grantor of parties through whom the defendants trace their interest, precluded them from asserting any title against the right of the plaintiffs to the reversion as heirs of Robertson and wife. This position was assumed upon the notion that a party who receives a deed of a life estate, and all persons taking a subsequent conveyance in fee from him or his grantees, or deriving title by devise from such grantees, are estopped to deny that the reversion upon the termination of the life estate is vested in the grantor or his heirs. There was here, of course, no estoppel by deed against Redfern, the grantee of the life estate, for he did not join in the execution of the instrument, nor is his seal annexed to it. If any estoppel was created against his acquisition of the reversion from other parties than his grantors, or persons claiming under them, it was one in pais; and that can arise as between grantor and grantee only where from the relation of the parties there is implied in the acceptance of possession under the deed an obligation to restore the possession on the happening of certain events, or to hold the property for the grantor's benefit or persons designated by him, such as exists from the relation of landlord and tenant, of mortgagor and mortgagee, or the creator of a trust and trustee. Gardner v. Greene, 5 R. I. 110. The doctrine that a lessee entering into possession under a lease is estopped, while retaining possession, to deny his landlord's title, is familiar. That arises from the nature of the contract of lease, which is for the possession and use, for a prescribed period, of the lessor's property, upon considerations to him by way of rent or otherwise. It implies an obligation to surrender the premises to the lessor on the termination of the lease; that is, at the expiration of the time during which the owner has stipulated that the lessee may have the use and possession of his property. As said by this court in Blight's Lessee v. Rochester: 'The title of the lessee is in fact the title of the lessor. He comes in by virtue of it, holds by virtue of it, and rests upon it to maintain and justify his position. He professes to have no independent right in himself, and it is a part of the very essence of the contract under which he claims that the paramount ownership of the lessor shall be acknowledged during the continuance of the lease, and that possession shall be surrendered at its expiration. He cannot be allowed to controvert the title of the lessor without disparaging his own, and he cannot set up the title of another without violating that contract by which he obtained and holds possession, and breaking that faith which he has pledged, and the obligation of which is still continuing and in full operation.' And in speaking, in the same case, of the relation between vendee and vendor, the court added: 'The vendee acquires the property for himself, and his faith is not pledged to maintain the title of the vendor. The rights of the vendor are intended to be extinguished by the sale, and he has no continuing interest in the maintenance of his title, unless he should be called upon in consequence of some covenant or warranty in his deed. The property having become by the sale the property of the vendee, he has a right to fortify that title by the purchase of any other which may protect him in the quiet enjoyment of the premises. No principle of morality restrains him from doing this, nor is either the letter or the spirit of the contract violated by it.' 7 Wheat. 547, 548. See, also, Willison v. Watkins, 3 Pet. 43; Watkins v. Holman, 16 Pet. 54; and Tayl. Landl. & Ten. § 14. To this general statement of the law there is this qualification: that a grantee cannot dispute his grantor's title at the time of conveyance so as to avoid payment of the purchase price of the property; nor can the grantee in a contest with another, while relying solely upon the title conveyed to him, question its validity when set up by the latter. In other words, he cannot assert that the title obtained from his grantor, or through him, is sufficient for his protection, and not available to his contestant. Where both parties assert title from a common grantor, and no other source, neither can deny that such grantor had a valid title when he executed his conveyance. Ives v. Sawyer, 4 Dev. & B. 51, and Gilliam v. Bird, 8 Ired. Law, 280. The case of Board v. Board, to which counsel refer, was decided upon similar grounds; there the defendant in ejectment, claiming as grantee under the devisee of a life estate under a will, was held to be estopped from denying the validity of the will in an action by the grantees of the remainder-man. L. R. 9 Q. B. 48. With exceptions or limitations of this character it will be found, on examination of the authorities, particularly those of a modern date, that the doctrine of estoppel in pais, however it may have been applied formerly, cannot now be asserted to preclude the grantee from denying his grantor's title and acquiring a superior one, unless there exist such a relation of the parties to each other as would render the proceeding a breach of good faith and common honesty. No such relation exists between grantor and grantee in an absolute conveyance, without recital or covenant, whether it be of the fee or of an estate for life. The grantee does not recognize, by the acceptance of such a conveyance of an estate for the life of another, the possession of any greater estate in the gran or, or any obligation to hold the premises for him after the termination of the estate. So far as he is informed, by such a conveyance he takes the entire interest of the grantor in the property. He does him, therefore, no wrong by purchasing any adverse claims which may strengthen his own title, or which may give him a title after the termination of the life estate. Covenants in the instrument intended for him, such as to restore and surrender the premises on the termination of the life estate, or recitals declaring the reversion to be in the grantor or others, would of course change the relations of the parties. Obligations from such covenants or recitals might arise which would control the action of the grantee. Atlantic Dock Co. v. Leavitt, 54 N. Y. 39. Here, as already stated, there is nothing of the kind. The conveyance is for the life of Maria, and no longer, and without covenants or recitals as to any further interest of the grantors or of others. By taking a deed poll of this character, no obligation to the grantors could arise, and, consequently, no estoppel precluding the grantee, and those claiming under him, from accepting conveyances from other sources to strengthen their existing interests or to acquire the reversion, and thus securing to themselves the absolute fee. In Osterhout v. Shoemaker, 3 Hill, 518, the supreme court of New York held a similar doctrine as to the relation between grantor and grantee in fee. Speaking by Judge BRONSON, it said: 'There is no estoppel where the occupant is not under an obligation, express or implied, that he will at some time, or in some event, surrender the possession. The grantee in fee is under no such obligation. He does not receive the possession under any contract, express or implied, that he will ever give it up. He takes the land to hold for himself, and to dispose of it at pleasure. He owes no faith or allegiance to the grantor, and he does him no wrong when he treats him as an utter stranger to the title.' This language was subsequently cited with approval by the court of appeals of the state in the case of Sparrow v. Kingman, 1 N. Y. 254, and there is no reason why it should not apply with equal force to a grantee of an estate for life as to a grantee in fee. There is nothing in the nature of the estate which necessarily implies that the grantor is the owner of the reversion. The absence in the deed here of any reference to a reversionary interest would rather seem to negative such ownership. Be that as it may, there was no implied obligation from any relation of the parties to each other which could estop the grantee of the life estate, or persons claiming under him, from denying the title of his grantors to any greater estate than the one conveyed, or from acquiring title to the reversion from other sources. We have considered in this opinion that Redfern took possession of the premises in controversy under the deed to him of the life estate, because, on the argument, that fact was assumed as established; but there is no direct evidence on the point in the record. Judgment affirmed.
109.US.104	1 The court adheres to its former rulings in regard to the liability of municipal corporations to innocent holders of the bonds of such corporations, issued in aid of railroads. Douglas v. .Pike County, 101 U. S. 677. 2. The rights of such holders are to be determined by the law as it was judicially construed to be when the bonds were put on the market as commerdial paper.	Nearly every point in this case has already been decided by this court in the cases of County of Callaway v. Foster, 93 U. S. 567; County of Scotland v. Thomas, 94 U. S. 682; County of Henry v. Nicolay, 95 U. S. 619; County of Schuyler v. Thomas, 98 U. S. 169; County of Cass v. Gillett, 100 U. S. 585; City of Louisiana v. Taylor, 105 U. S. 454; and County of Ralls v. Douglass, 105 U. S. 728. In the case last cited we referred to the previous cases, and to the cases in Missouri which they followed, and said: 'Such being the condition of the law on this subject down to April, 1878, we do not feel inclined to reconsider our former rulings, and follow the later decisions of the supreme court of the state in State v. Garroutte, 67 Mo. 445, and State v. Dallas Co. Ct. 72 Mo. 329, where this whole line of cases was substantially overruled. The bonds involved in this suit were all in the hands of innocent holders when the law of the state was so materially altered by its courts. In our opinion the rights of the parties to this suit are to be determined by the law as it was judicially construed to be when the bonds in question were put on the market as commercial paper. Douglass v. Pike Co. 101 U. S. 687.' From the views thus expressed we are not disposed to swerve. One point taken in the present case may not have been presented in any of the cases cited, to-wit, that the rights, privileges, and franchises of the Kansas City & Cameron Railroad Company were not expressly declared to pass over to the company with which it might become consolidated by the law authorizing such consolidation. This law was passed March 11, 1867, and declared as follows: 'It shall be lawful and competent for said company to make such arrangement with any other railroad company to furnish equipments, and to run and manage its railroad, as it may deem expedient and find necessary, or to lease the same, or to consolidate it with any other company upon such terms as may be deemed just and proper.' In the 'finding of facts' made by the court it is, among other things, found as follows: 'That under the provisions of an act of the general assemby of the state of Missouri, approved May 11, 1867, entitled, etc., the said corporation, then known as the Kansas City & Cameron Railroad Company, on the twenty-first day of February, in the year 1870, was consolidated with the Hannibal & St. Joseph Railroad Company, and all the rights, privileges, franchises, and property of said Kansas City & Cameron Railroad Company were, by said consolidation, transferred to the Hannibal & St. Joseph Railroad Company, which then and thereby became the owner of and possessed of the same.' If only a sale of the road to another company had been authorized and made, then it might very plausibly have been contended that the purchasing company took and held it under its own charter only, without the franchises and privileges connected with it in the hands of the vendor company; but 'consolidation' is not sale, and when two companies are authorized to consolidated their roads, it is to be presumed that the franchises and privileges of each continue to exist in respect to the several roads so consolidated. This point was considered in the case of Tomlinson v. Branch, 15 Wall. 460, and Branch v. City of Charleston, 92 U. S. 677, and was decided in accordance with this view. This being so, the authority given to consolidate, 'upon such terms as may be deemed just and proper,' would include the power to transfer to the consolidated company the franchises and privileges connected with the road, if the law itself did not have that effect; and the court has found that this was done. We think, therefore, that the point is not well taken. The judgment of the circuit court is affirmed.
110.US.276	A bill filed on the equity side of the court to restrain or regulate judgments or suits at law in the same court, and thereby prevent injustice or an inequitable advantage under mesne or final process, not being an original suit, but ancillary and dependent, supplementary merely to an original suit out of which it arose, can be maintained without reference to the citizenship or residence of the parties. Freeman v. Howe, 24 How. 450, followed, and the language of NELsoF, J., in the opinion of the court adopted. The powers both of courts of equity and courts of law over their own procezs to prevent abuse, oppression, and injustice are inherent and equally extensive and efficient: as is also their power to protect their own jurisdiction and officers in the possession of property that is in the custody of the law. When property in the possession of a third person claiming ownership is attached by a marshal on mesne process issuing out of a Circuit Court of the United States as the property of a defendant, citizen of the same State as the person claiming it, such person has no adequate remedy against the marshal in the State court, and may seek redress in the Circuit Court having custody of the property by ancillary proceedings ; as, for instance, if the original proceeding is in equity, by a petition pro interesse suo, or by ancillary bill, or by summary motion, according to circumstances ; or if it is at common law, by a summary motion or by a proceeding in the nature of an interpleader ; or if proceedings authorized by statutes of the State in which the cause is pending afford an adequate remedy, by adopting them as put of the practice of the court.	This appeal is prosecuted to review a decree dismissing the bill of the appellant for want of equity. The case made by the bill is as follows: According to the law of Indiana, the giving of the delivery bond did not divest the lien of the attachment upon the goods, which remained, in contemplation of law, in the possession of the officer, (Gass v. Williams, 46 Ind. 253;) so that if the proceedings had been in the state court, the appellant, while the goods remained in specie, on demand and refusal of a return of the property to him by the officer, might have maintained an action of replevin on proof of title. Louthain v. Fitzer, 78 Ind. 449. Having disposed of the goods, so that he could not return them in specie, it would seem that no action of replevin could thereafter be brought, and, on general principles, be could not set up his ownership as a defense to an action on the bond. Drake, Attachm. § 340. Under the practice in Indiana he would not be permitted to become a party to the suit in order to have his title there determined. Risher v. Gilpin, 29 Ind. 53. And, accordingly, in the attachment suit of Hyde Bros. against Frey & Maag, as stated in the bill, the appellant, having been at first made a party on his own motion, was susequently dismissed from it. Payment of the appraised value of the attached property to the marshal, which, by the terms of the delivery bond, he was bound to make, it can hardly be insisted deprived him of his title to the goods and their proceeds. Without giving the delivery bond, it is true, the owner could have brought suit against the marshal for trespass, although that would not in all cases furnish an adequate remedy by giving damages for the value of the property taken. Watson v. Sutherland, 5 Wall. 74. The only legal remedy which can be said to be adequate for the purpose of protecting and preserving his right to the possession of his property was an action of replevin. Of this remedy at law in the state court he was deprived by the fact that the proceedings in attachment were pending in a court of the United States, because the property attached, being in the hands of the marshal, is regarded as in the custody of the court. This was the point decided in Freeman v. Howe, 24 How. 450, the doctrine of which must be considered as fully and firmly established in this court. In meeting the objections made in argument to the conclusion of the court in that case, Mr. Justice NELSON, delivering his opinion, used the following language: 'Another misapprehension under which the defendant in error labors, and in which the court below fell, was in respect to the appropriate remedy of the plaintiffs in the replevin suit for the grievance complained of. It was supposed that they were utterly remediless in the federal courts, inasmuch as both parties were citizens of Massachusetts. But those familiar with the practice of the federal courts have found no difficulty in applying a remedy, and one much more effectual than replevin, and more consistent with the order and harmony of judicial proceedings, as may be seen by reference to the following cases: Pennock v. Coe, 23 How. 117; Gue v. Tide Water Canal Co., [24 How. 257,] decided this term; 12 Pet. 164; 8 Pet. 1; 5 Cranch, 288. 'The principle is that a bill filed on the equity side of the court to restrain or regulate judgments or suits at law in the same court, and thereby prevent injustice or an inequitable advantage under mesne or final process, is not an original suit, but ancillary and dependent, supplementary merely to an original suit out of which it had arisen, and is maintained without reference to the citizenship or residence of the parties. 'The case in 8 Pet. 1, which was among the first which came before the court, deserves, perhaps, a word of explanation. It would seem, from a remark in the opinion, that the power of the court upon the bill was limited to a case between the parties to the original suit. This was probably not intended, as any party may file the bill whose interests are affected by the suit at law.' It has been sometimes said that this statement was obiter dictum, and not to be treated as the law of the case; but it was, in point of fact, a substantial part of the argument in support of the judgment, and, on consideration, we feel bound to confirm it in substance as logically necessary to it; for, if we affirm, as that decision does, the exclusive right of the circuit court in such a case to maintain the custody of property, seized and held under its process by its officers, and thus to take from owners, wrongfully deprived of possession, the ordinary means of redress by suits for restitution in state courts, where any one may sue, without regard to citizenship, it is but common justice to furnish them with an equal and adequate remedy in the court itself which maintains control of the property; and, as this may not be done by original suits, on account of the nature of the jurisdiction as limited by differences of citizenship, it can only be accomplished by the exercise of the inherent and equitable powers of the court in auxiliary and dependent proceedings incidental to the cause in which the property is held, so as to give to the claimant from whose possession it has been taken, the opportunity to assert and enforce his right. And this jurisdiction is well defined by Mr. Justice NELSON, in the statement quoted, as arising out of the inhereint power of every court of justice to control its own process so as to prevent and redress wrong. This principle was illustrated and applied in the case of Bank v. Turnbull, 16 Wall. 190. There, under a statute of Virginia, the claimant of property taken in execution upon a judgment rendered against another, gave to the sheriff a suspending and forthcoming bond, which stayed the sale and maintained his possession of the property until the title could be determined by a statutory interpleader. This issue having been properly directed in the state court, between parties who were citizens of different states, a petition was filed for its removal to the circuit court of the United States, under the removal act of March 2, 1867. The order of removal was reversed by this court on the ground that the suit 'was merely auxiliary to the original action, a graft upon it, and not an independent and separate litigation;' that 'it was provided to enable the court to determine whether its process had, as was claimed, been misapplied, and what right and justice required should be done touching the property in the hands of its officers. It was intended to enable the court, the plaintiff in the original action, and the claimant, to reach the final and proper result by a process at once speedy, informal, and inexpensive.' No one, even in equity, is entitled to be made or to become a party to the suit unless he has an interest in its object, (Calv. Part. 13;) yet it is the common practice of the court to permit strangers to the litigation, claiming an interest in its subject-matter, to intervene on their own behalf to assert their titles. 'When any person,' says Mr. Daniell, (Ch. Pr. c. 26, § 7, p. 1057,) 'claims to be entitled to an estate or other property sequestered, whether by mortgage or judgment, lease or otherwise, or has a title paramount to the sequestration, be should apply to the court to direct an inquiry whether the applicant has any and what interest in the property sequestered. This inquiry is called an examination pro interesse suo; and an order for such an examination may be obtained by a party interested, as well where the property consists of goods and chattels or personalty, as where it is real estate. Thus, in Martin v. Willis, 1 Fowl. Ex. Pr. 160, a person claiming title to goods seized under a sequestration, obtained an order for an examination pro interesse suo, and in the mean time that the goods might be restored to him on his giving security.' The same practice prevails in cases where property is put into the hands of a receiver. Daniell, Ch. Pr. c. 34, § 4, p. 1744. The grounds of this procedure are the duty of the court to prevent its process from being abused to the injury of third persons, and to protect its officers and its own custody of property in their possession, so as to defend and preserve its jurisdiction, for no one is allowed to question or disturb that possession except by leave of the court. So, the equitable powers of courts of law over their own process to prevent abuse, oppression, and injustice are inherent and equally extensive and efficient, as is also their power to protect their own jurisdiction and officers in the possession of property that is in the custody of the law, (Buck v. Colbath, 3 Wall. 334; Hagan v. Lucas, 10 Pet. 400;) and when in the exercise of that power it becomes necessary to forbid to strangers to the action the resort to the ordinary remedies of the law for the restoration of property in that situation, as happens when otherwise conflicts of jurisdiction must arise between courts of the United States and of the several states, the very circumstance appears which gives the party a title to an equitable remedy, because he is deprived of a plain and adequate remedy at law; and the question of citizenship, which might become material as an element of jurisdiction in a court of the United States when the proceeding is pending in it, is obviated by treating the intervention of the stranger to the action in his own interest, as what Mr. Justice STORY calls, in Clarke v. Mathewson, 12 Pet. 164-172, a dependent bill. In the original action of Hyde Bros. against Frey & Maag, in which the attachment was issued and levied, the jurisdiction of the circuit court at tached by reason of the citizenship of the parties. But the statute of Indiana, granting and regulating the process of attachment, provides (section 943, Rev. St. 1881,) that after the institution of the suit, and at any time before final judgment, any creditor of the defendant may file and prove his claim, with the right to participate in the distribution of the proceeds of the attached property. In the present case that actually took place, and it is shown, on the face of the bill, that a large number of persons, as to whom it is not stated, that they were citizens of other states, competent to bring an original action in the circuit court, and as to whom it does affirmatively appear, that the judgment upon their claims in their favor are less than the jurisdictional sum of $500, nevertheless, filed their claims, obtained judgments, and will be entitled on distribution to divide with the plaintiff and among themselves the money paid into court by the appellant. So that, unless he is allowed to intervene by his present bill to stay the distribution of the fund, which, by the demurrer, is admitted to be his own, the anomaly will be presented, in judicial proceedings, of an award, dividing property among claimants, from which the only person excluded is the one whose sole and paramount title is confessed; and he will be compelled to stand idly by to witness the dissipation of his property into many unknown hands, by a court, to whose jurisdiction he has submitted himself from the beginning, and which now remits him to an action for damages against its own officer who has simply acted under its order. This court has uniformly resisted the tendency to confuse the boundaries of law and equity in its procedure, and maintained the distinction between the two systems, so deeply imbedded in our jurisprudence; and in the present instance, is not to be considered as departing from the consistent course of precedents in which that distinction has been maintained. The bill in this case is not to be treated as an original bill in equity, for, as such, it could not be maintained. It is altogether ancillary to the principal action at law in which the attachment issued, and should be regarded as merely a petition in that cause, or dependent upon it and connected with it, as a petition pro interesse suo, or of intervention in an equity or an admiralty suit, asserting a claim to property or a fund in court, the subject of the litigation, which, owing to the peculiar relations between the courts of the states and of the United States, is a necessary resort to prevent a failure of justice, and furnishes in such cases a certain, adequate, and complete remedy against injurious abuses of the process of the court, by supplying a means, in the principal suit, of trying the title to property in the custody of the law. The character of the bill as related to the principal case is well explained in Minnesota Co. v. St. Paul Co. 2 Wall. 609-633, where it is stated 'that the question is not whether the proceeding is supplemental and ancillary, or is independent and original in the sense of the rules of equity pleading, but whether it is supplemental and ancillary, or is to be considered entirely new and original, in the sense which this court has sanctioned, with reference to the line which divides the jurisdiction of the federal courts from that of the state courts. No one, for instance, would hesitate to say that, according to the English chancery practice, a bill to enjoin a judgment at law is an original bill in the chancery sense of the word. Yet this court has decided many times that when a bill is filed in the circuit court to enjoin a judgment of that court, it is not to be considered as an original bill, but as a continuation of the proceeding at law; so much so that the court will proceed in the injunction suit without actual service of subpoena on the defendant, and though he be a citizen of another state, if he were a party to the judgment.' And in speaking of the application of the principle to the case then before it, the court, Mr. Justice MILLER, delivering its oinion, continued: 'The case before us is analogous. An unjust advantage has been obtained by one party over another by a perversion and abuse of the orders of the court, and the party injured comes now to the same court to have this abuse corrected, and to carry into effect the real intention and decree of the court, and that while the property, which is the subject of the contest, is still within the control of the court and subject to its order.' The question was discussed in Van Norden v. Morton, 99 U. S. 378, where the court pointed out the mode of reconciling the distinction between original legal and equitable rights and remedies, as administered in the courts of the United States, and ancillary proceedings to restrain and control their process. Referring to the statutory injunction given by the law of Louisiana to restrain 'the sheriff in the execution of a judgment' when 'he has seized property not belonging to the defendant, and insists on selling the same, disregarding the opposition of him who alleges that he is the real owner,' Mr. Justice MILLER, delivering the opinion of the court, said: 'Now, this obviously refers to the control of the court over its own officer, in the execution of its own writs, and is applicable to other misconduct of that officer in the execution of his official duties, as in cases of seizures of property not liable under an execution in his hands. The remedy needs no formal chancery proceeding, but a petition or motion, with notice to the sheriff, is not only all that is required, but is the most speedy and appropriate mode of obtaining relief. This relief does not depend upon any inadequacy of an action for damages or by sequestration. It is a short, summary proceeding before the court under whose authority the officer is acting, gives speedy relief, and is very analogous to the statutory remedy given in many of the western states in similar cases to try the right of property at the instance of the party whose property is wrongfully seized.' It is in this light, we think, that the court below should have regarded the present bill, not as an original bill invoking the general jurisdiction of the court in equity, but as an ancillary and dependent bill, equivalent in effect and purpose to a petition in the attachment proceeding itself, incident to and dependent upon it. The form of proceeding, indeed, must be determined by the circumstances of the case. If the original cause, in which the process has issued, or the property or fund is held, is in equity, the intervention will be by petition pro interesse suo, or by a more formal, but dependent bill in equity, if necessary. Relief, either in a suit in equity, or an action at law, may properly be given in some cases, in a summary way, by motion merely, supported by affidavits. In actions at law, where goods have been taken in execution after judgment, or upon attachment before, a proceeding in the nature of an interpleader might be appropriately ordered by the court, such as was given in the English practice to the officer by the statute of 1 & 2 Wm. IV. c. 58; 2 Lush, Pr. by Dixon, 777; and in that the respective rights of the claimants to the property could generally be tried as in an action at law by a jury, upon a formal issue framed for that purpose, or with the consent of the parties by the court; or, if the claim was such as that it could be determined only upon principles of equity, as administered in courts of that general jurisdiction, it would be proper to provide relief upon a bill of that nature, filed for that purpose. If the statutes of the state contained provisions regulating trials of the right of property in such cases, it might be most convenient to make them a part of the practice of the court, as contemplated by sections 914, 915, 916 of the Revised Statutes. In whatever form, however, the remedy is administered, whether according to a procedure in equity, or at law, the rights of the parties will be preserved and protected against judicial error, and the final decree or judgment will be reviewable, by appeal or writ of error, according to the nature of the case. For the reasons given, we are of opinion that the circuit court should have overruled the demurrer to the bill, and required the parties to try the issue tendered to the appellant. The decree dismissing the bill is accordingly reversed, and the cause remanded with direction to take such further proceeding therein, in conformity with this opinion, as jsutice and equity require. It is accordingly so ordered.
109.US.244	The legislature of Florida, acting under the Constitution of the State, passed an improvement act, exempting from taxation the capital stock of railroad companies accepting its provisions. The Alabama and Florida Railroad Company was organized, and constructed a railroad within the State limits, and became entitled to enjoy the exemption. In 1868 the State of Florida adopted a Constitution which provided for a uniform and equal rate of taxation, and that the property of corporations theretofore or thereafter to be incorporated should be subject to taxation. The road and property, rights, privileges, and franchises of the A. & F. Co. being sold under decree of foreclosure, became by mesne conveyances vested in the Pensacola and Louisville Railroad Co. In 1872 the legislature enacted that the P. & L. Co., as assignees of the A. & F. Co., should be exempted from taxation during the remainder of the period for which the A. & F. Co. would have been exempted. In 1877 the title of the P. & L. Co. to its road and other prope ty, and its franchises, rights, privileges, easements, and immunities were conveyed to the Pensacola Railroad Company, and the legislature authorized the P. R. Co. to acquire and enjoy them. The P. & L. Co. possessed, among other things, the power to lease to a railroad company out of the State. It was claimed that this right passed to the P. R. Co., and the latter leased its railroad and property, rights, privileges, easements and immunities to the plaintiff in error. .feZd, 1 That the right of exemption from taxation did not pass from the A. & F. Co. to the P. & L. Co. by the sale under the mortgage. e. That the language of the act of 1877 was broad enough to create that right anew, if the legislative grant was valid; but that 3. The legislature of Florida, after the adoption of the Constitution of 1868, could not make an original grant to a railroad, exempting its railroad property from taxation. 4. That any right of this kind that could have been created by the act of 1877,-was personal, and not assignable. 5. That a demurrer to the bill does not admit the contrary of these facts in law which appear upon the face of the bill, and of which the court must take judicial notice. 6. That the federal question before the court is, whether the State court gave effect to a State law which impairs the obligation of a contract; in deciding which, and in determining whether there was a contract, the court is not necessarily governed by previous decisions of State courts, except where they have been so firmly established as to constitute a rule of property.	The exemption from taxation, created by the eighteenth section of the internal improvement act of 1855, is in every respect similar to that which was declared in Morgan v. Louisiana, 93 U. S. 217, to be not assignable. No words of assignability are used by the legislature of the state in the language creating it, and from its nature and context it is to be inferred that the exemption of the property of the company was intended to be of the same character as that declared in reference to its capital stock and to its officers, servants, and employes, and that all alike were privileges personal to the corporation, or to individuals connected with it, entitled to them by the terms of the law. This exemption, therefore, did not pass from the Alabama & Florida Railroad Company to the Pensacola & Louisville Railroad Company by the conveyances which passed the title to the railroad itself, and to the franchises connected with and necessary in its construction and operation. This conclusion is confirmed by the eighteenth section of the act of February 4, 1872, amending the charter of the Pensacola & Louisville Railroad Company. That section recites that the last-named company having become assignee of the Alabama & Florida Railroad Company, and of its franchises and property, 'which corporation was exempt from taxation for a limited period, the said Pensacola & Louisville Railroad Company and its property, now owned or hereafter to be acquired, shall also be exempted from taxation during the remainder of said period.' Here the original exemption is declared to be the privilege of the Florida & Alabama Railroad Company, the particular corporation to which it was granted, and the necessity for conferring it by a new legislative grant upon the assignee of the property and franchises of the original corporation, rests upon the implication that the exemption did not pass to it by the assignment between the parties. And the further inference is equally necessary, that the exemption transferred or created in the new company by the terms of the legislative grant is identical in its character as a personal and unassignable privilege to the new grantee, with that it had when it belonged to the first company. But the second section of the act of February 27, 1877, incorporating the Pensacola Railroad Company, authorized and empowered it to acquire by purchase and assignment all the property, rights, franchises, privileges, and immunities of the Pensacola & Louisville Railroad Company, and, upon completion of such purchase and assignment, declared that the former should be deemed, in law and in equity, to be fully invested with and entitled to all the said property, rights, franchises, privileges, and immunities as though the same were originally granted to or acquired by the said Pensacola Railroad Company. It is claimed that this language is broad enough to cover the assignment and transfer of the immunity from taxation granted to the Pensacola & Louisville Railroad Company by the eighteenth section of its charter. And we are of this opinion. The language is comprehensive and unequivocal, and the word 'immunity' is apt to describe the exemption claimed. It admits of no doubt, we think, if the Pensacola & Louisville Railroad Company were entitled to this exemption, and if the legislative grant of authority to make and accept this assignment of it was valid and effective, that the right to be exempt from taxation according to its terms passed to the Pensacola Railroad Company. But it must be borne in mind that it must be taken to have vested in the latter, if at all, precisely as it had in the former; that is, as a personal privilege. The assignment in the particular instance, based upon the express authority of a new enactment, did not impart to the immunity the quality of general assignability to other successors in the title to the property and franchises, claiming only under a conveyance between the parties. The title of the plaintiff in error, therefore, to the exemption claimed, must be supported by some other authority. This is claimed to be found in the general power given by the thirteenth section of its charter to the Pensacola & Louisville Railroad Company to lease or sell to or consolidate with any other railroad company in or out of the state, which power passed with others to the Pensacola Railroad Company by the second section of its charter. But as we have already seen, and as was decided in Morgan v. Louisiana, 93 U. S. 217, and Wilson v. Gaines, 103 U. S. 417, the exemption from taxation does not pass by virtue of a conveyance of the railroad and its franchises, which was all the Pensacola Railroad Company could pass under that authority, but requires for its transfer some particular and express description, indicating unequivocally the intention of the legislature that it might pass by an assignment. That does not exist in this case, and the exemption claimed by the plaintiff in error fails because it was not and could not be transferred to it, under the law, by the Pensacola Railroad Company. It is sought to avoid this conclusion by converting the question into one of pleading. It is said that the bill alleges, as a matter of fact, that the exemption passed to and vested in the complaintant below, and that the truth of the allegation is admitted by the demurrer. But this is matter of law; the documents of title are exhibited with the bill and constitute part of the record; and we take judicial notice of their legal effect. A fact impossible in law cannot be admitted by a demurrer. In Wilson v. Gaines, 103 U. S. 417, it was inferred, in the face of a demurrer, claimed to be an admission of a contrary allegation, that the sale did not pass any rights of property, not described, as within the lien of the mortgage. We have thus shown that the claim of the plaintiff in error to the exemption alleged fails, because the Pensacola Railroad Company, if it possessed it, had no power to convey it. It will appear, on further examination, that it fails for a distinct and deeper reason, namely, because the Pensacola Railroad Company was itself not entitled to any such exemption. That company was incorporated by the act of February 27, 1877, which undoubtedly did purport to grant to it, as assignee of the Pensacola & Louisville Railroad Company, in terms sufficiently broad, the immunity from taxation which, by the eighteenth section of the act of February 4, 1872, was expressly declared to be granted to the latter. Both the statutes, however, were passed by the general assembly of Florida, acting under the constitution of that state, which went into effect in 1868. Article 12, § 1, of that constitution is as follows: 'The legislature shall provide for a uniform and equal rate of taxation, and shall prescribe such regulations as shall secure a just valuation of all property, both real and personal, excepting such property as may be exempted by law for municipal, educational, literary, scientific, religious, or charitable purposes.' 'The property of all corporations, whether heretofore or hereafter incorporated, shall be subject to taxation, unless such corporation be for religious, educational, or charitable purposes.' In 1875 this clause was amended so as to read as follows: 'The property of all corporations, whether heretofore or hereafter incorporated, shall be subject to taxation, unless such property be held and used exclusively for religious, educational, or charitable purposes.' It is under the authority and in pursuance of the mandates of these constitutional provisions that the legislature passed the act of March 5, 1881, under which the road of the plaintiff in error is subjected to taxation, and the validity of which is here under review. It cannot be and is not contended that under these constitutional limitations the legislature of Florida could make an original grant to a railroad corporation exempting its railroad property from taxation. But the grant to the Pensacola & Louisville Railroad Company by the act of 1872, and that to the Pensacola Railroad Company by the act of 1877, though in form the renewal or transfers of previously existing grants, were in fact the creation of new ones. In Trask v. Maguire, 18 Wall 391-409, it was said, speaking of similar provisions in the constitution of Missouri: 'The inhibition of the constitution applies in all its force against the renewal of an exemption equally as against its original creation;' and in Shields v. Ohio, 95 U. S. 319, it was decided that in cases of corporations created by consolidation the powers of the new company did not pass to it by transmission from its constituents, but resulted from a new legislative grant, that could not transcend the constitutional authority existing at the time it took effect. It follows that the exemption from taxation in terms contained in the charters of 1872 and 1877 were void, as unauthorized and prohibited by the state constitution of 1868. It does not weaken this conclusion to say that the exemption contained in the internal improvement act of 1855 was authorized by the constitution of the state then in force, which may be admitted, and that it was assignable in its nature or by its terms in such manner that it became impressed upon the property itself into whosesoever hands it should afterwards come, following the title, like an easement or a covenant running with the land, which we have shown, however, not to be the case; for, even on that supposition, the privilege is one that must be exercised by some person capable in law of accepting and exercising it. The conception of an immunity that is impressed upon the thing in respect to which it is granted is purely metaphorical. The grant is to a person in respect of a thing, and it is said to inhere in or be attached to the thing only when by its terms the grant is assignable by a conveyance of the thing, and passess as an incident with the title to each successor. There must always be a person capable not only of receiving the title, but also of accepting the conditions accompanying it, and which constitute the exemption; otherwise the conditions become impossible and void. After the adoption of the constition of Florida of 1868, there could be no corporation created capable in law of accepting and enjoying such an exemption, for that was prohibited by the constitutional provisions that have been cited. In the case of the Pensacola & Louisville Railroad Company, in 1872, the capacity at that time to receive this privilege depended altogether upon the legislative act amending its charter to that effect; and if any doubt as to this might be reasonably entertained, certainly none can arise as to the Pensacola Railroad Company, which derived all its powers and its very existence from legislation dependent for its validity wholly upon the constitution of 1868. The prohibition which forbids the legislature from exempting the property of railroad corporations from taxation, makes it impossible for the legislature to create such a corporation capable in law of acquiring and holding property free from liability to taxation. It has, however, been earnestly urged upon us in argument, by counsel for the plaintiff in error, that the supreme court of Florida, in the case of Gonzales v. Sullivan, 16 Fla. 791, explicitly decided, in opposition to the views we have expressed, that the railroad and property, the subject of this litigation, then held by the Pensacola & Louisville Railroad Company, were exempt from taxation, according to the terms of the provision in the internal improvement act of 1858; and it is pressed upon us as a conclusive determination of the law of Florida upon the point, particularly authoritative in the present case, for the reason that the plaintiff in error, having, subsequently to that decision, acquired its title, may be presumed to have acted upon the faith of it. This presumption is not pressed, however, to the extent of establishing a contract between the plaintiff in error and the state of Florida, the obligation of which has been impaired by any law subsequently passed, nor of working an estoppel against the state as res adjudicata, with an equivalent effect. The decision cited, therefore, cannot be allowed any greater effect as an authority than ought to be given, in cases of this description, to the judgments of state tribunals. The question we have to consider and decide is whether, in the judgment under review, the supreme court of Florida gave effect to a law of the state which, in violation of the constitution of the United States, impairs the obligation of a contract. In reaching a conclusion on that point, we decide for ourselves, independently of the decision of the state court, whether there is a contract, and whether its obligation is impaired; and if the decision of the question as to the existence of the alleged contract requires a construction of state constitutions and laws, we are not necessarily governed by previous decisions of the state courts upon the same or similar points, except where they have been so firmly established as to constitute a rule of property. Such has been the uniform and well-settled doctrine of this court. State Bank of Ohio v. Knoop, 16 How. 369-391. As was said by Chief Justice TANEY in the case of Ohio Life Ins. & Trust Co. v. Debolt, 16 How. 416-432: 'But this rule of interpretation is confined to ordinary acts of legislation, and does not extend to the contracts of the state, although they should be made in the form of a law; for it would be impossible for this court to exercise any appellate power in a case of this kind, unless it was at liberty to interpret for itself the instrument relied on as the contract between the parties. It must necessarily decide whether the words used are words of contract, and what is their true meaning, before it can determine whether the obligation the instrument created has or has not been impaired by the law complained of. Now, in forming its judgment upon this subject, it can make no difference whether the instrument claimed to be a contract is in the form of a law, passed by the legislature, or of a covenant or agreement by one of its agents acting under the authority of the state.' To the same effect are the cases of Jefferson Branch Bank v. Skelly, 1 Black, 436, and Bridge Proprietors v. Hoboken Co. 1 Wall. 116. It is true that in all these cases the state courts, whose judgments were brought into review, had construed the statutes as not creating a contract; but the principle is equally applicable in the converse case. Burgess v. Seligman, 107 U. S. 20; [S. C. 2 SUP. CT. REP. 10.] It is undoubtedly true that the opinion of the supreme court of Florida, in the case of Gonzales v. Sullivan, 16 Fla. 791, is not consistent with that which we have expressed upon some of the principal questions involved in this case. It did declare, speaking of the effect of the internal improvement act of 1855, 'that an exemption from taxation resting in contract is annexed, by the terms of the law which created it, to the road itself, and not to the companies,' and that by the act of 1872 the Pensacola & Louisville Railroad Company, as assignee of the Florida & Alabama Railroad, became entitled to the exemption, because 'the property passed, and with it, as an incident, went the exemption.' But the main topics in the discussion in the opinion were, whether the Florida & Alabama Railroad was within the scope of the internal improvement act of January 6, 1855, by virtue of the amendment of December 14, 1855, the constitutional authority to pass which was denied in argument, but affirmed by the court; and the question as to the effect of the provisions of the constitution of 1868, which we have considered, upon the capacity of the Pensacola & Louisville Railroad Company and the Pensacola Railroad Company to accept the privilege and benefit of the exemption, by legislative authority exerted in 1872 and 1877, does not seem to have been raised or noticed, much less adjudged. In our opinion there is no error in the judgment of the supreme court of Florida in the matter complained of, and it is accordingly affirmed.
109.US.341	If commissioners, authorized by statute to subscribe in the corporate name of a town for stock in a railroad company, and, upon obtaining the consent of a certain majority of taxpayers, to issue bonds of the town under the bands and seals of the commissioners, and to sell the bonds and invest the proceeds of the sale in stock of the railroad company, which shall be held. by the town with all the rights of other stockholders, issue, without obtaining the requisite consent of taxpayers, to the railroad company, in exchange for stock, such bonds signed by the commissioners, but on which the seals are omitted by oversight and mistake; ind the town sets up the want of seals in defence of an action at law afterwards brought against it by one who has purchased such bonds for value, in good faith, and without observing the omission, to recover interest on the bonds; a court of equity, at his suit, will decree that the bonds be held. as valid as if actually sealed before being issued, and will restrain the setting up of the want of seals in the action at law. A bill in equity in the Circuit Court of the United States against a town in one State by a citizen of another, for relief against the accidental omission of seals from bonds of the defendant, payable to bearer,* and held by the plaintiff, some of which are owned by him, and others of which are owned in different amounts, part by citizens of the State in which the town is, and part by citizens of other States, and have been transferred to him by the real owners for the mere purpose of being sued, should be dismissed, under the act of March 3d, 1875, c. 187, § 5, so far as regards all bonds held by citizens of the same State as the defendant, and bonds held by a citizen of another State to a less amount than $500.	'Sec. 3. 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 township, 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 stock of said railroad company for the purpose of building the aforesaid railroad, and said money shall be applied and used in the construction of said railroad, its buildings, equipment, and necessary appurtenances, and for no other purpose. The commissioners respectively, in the corporate name of each of their said townships, shall subscribe for and purchase stock in said railroad company to the amount they may have severally borrowed as aforesaid; and by virtue of such subscription or purchase of stock, upon receiving certificates for the amount of said stock so subscribed for or purchased by them, the said townships shall acquire all the rights and privileges respectively of other stockholders of said company, and it shall be lawful for the commissioners provided for in this act, or either of them with the consent of the others, or a majority of the said commissioners, to participate in and to act in all the regular and legally authorized meetings of the stockholders, and either of them may act as director of said company, if he shall be duly elected as such.' By section 4, the commissioners were directed to report annually to the township committee the amount required for the next year to pay the interest or principal of the bonds, and to apply in payment thereof the dividends on the stock subscribed or purchased for the township; and any deficiency was to be assessed and levied upon the landed property of the township, like other taxes. By section 5, the railroad company might agree with the commissioners, 'in behalf of their respective townships,' to pay the interest accruing 'on the bonds issued by such townships,' for three years, or until the railroad should be completed and earning sufficient to pay dividends equal to the interest. By section 6, the commissioners might, after acquiring stock, exchange it for bonds issued, and cancel the bonds so received; or they might, with such consent as mentioned in section 2, sell the stock for cash at public sale, and apply the proceeds to the purchase or redemption of the bonds. And by section 7, at the end of 25 years, the sum due for principal and interest on the bonds, as reported by the commissioners, was to be assessed and levied on the landed property. By section 9, the commissioners were required, before entering upon the discharge of their duties, to give bond to the township, with sureties approved by the township committee or by the judge of the county court. By section 11, their pay and disbursements were to be 'audited and paid by the township committee, the same as other township expenses.' By section 12, the commissioners in each township were to 'constitute a board to act for their said townships respectively.' And by section 14, all bonds issued were required to be registered in the office of the county clerk, and the words 'registered in the county clerk's office' be printed or written across the face of each bond, attested by the signature of the county clerk, 'and no bond shall be valid unless so registered.' Commissioners for the township of Bernards, in the county of Somerset, were appointed, and gave bond to the township according to sections 1 and 9. On the seventeenth of December, 1868, they filed in the county clerk's office the written consent of a number of tax-payers, not being a majority of all the tax-payers in the township, but being a majority in number and value of the owners of real estate therein; with an affidavit of one of the commissioners to the signatures; and an affidavit of the assessor that the signers were a majority of the tax-payers of the township and represented a majority of the real property of the township, and also that they were a majority of the tax-payers of the township appearing upon its assessment roll for 1867, or their legal representatives, and represented a majority of the landed property of the township appearing upon that assessment roll. In the same month of December, 1868, the commissioners subscribed in behalf of the township for stock in the railroad company, of the value of $127,000, which did not exceed 10 per cent. of the assessed valuation of the landed property of the township in 1867; and caused bonds of the township to an equal amount to be printed in the form hereinafter set forth; and made an arrangement with the railroad company to exchange the bonds of the township for stock in the company, and to deliver the bonds of the company in installments, as calls for payments on subscriptions were made, and as the work on the railroad progressed. The railroad was afterwards built and put in operation through the town; and the commissioners issued to the railroad company, in exchange for stock, instruments to the amount aforesaid, in the form of bonds, of the denominations of $1,000, $500, and $100, respectively, signed by the commissioners, but not sealed, with interest coupons annexed. The form of the bonds and of the coupons was as follows: 'No.___. United States of America. $500. 'TOWNSHIP OF BERNARDS, SOMERSET COUNTY, STATE OF NEW JERSEY. 'The inhabitants of the township of Bernards, in the county of Somerset, acknowledge themselves to owe to bearer five hundred dollars, which sum they promise to pay the holder hereof, at the American Exchange National Bank, in the city of New York, twenty-three years after the date hereof, and interest thereon at the rate of seven per cent. per annum, payable semi-an nually on the first days of July and January in each year, until the said prin cipal sum shall be paid, on the presentation of the annexed interest coupons at the said bank. 'This bond is one of a series of like tenor, amounting in the whole to the sum of one hundred and twenty-seven thousand dollars, issued on the faith and credit of said township in pursuance of an act entitled 'An act to authorize certain towns in the counties of Somerset, Morris, Essex, and Union to issue bonds and take stock in the Passaic Valley & Peapack Railroad Company,' approved April 9, 1868. 'In testimony whereof the undersigned, commissioners of the said township of Bernards, in the county of Somerset, to carry into effect the purposes and provisions of the said act, duly appointed, commissioned, and sworn, have hereunto set our hands and seals the first day of January, in the year of our Lord one thousand eight hundred and sixty-nine. 'JOHN H. ANDERSON, 'JOHN GUERIN, 'OLIVER R. STEELE, 'Commissioners.' 'Registered in the county clerk's office. 'WILLIAM ROSS, Jr., County Clerk.' '$17.50. The inhabitants of the township of Bernards, in the county of Somerset, will pay the bearer, at the American Exchange National Bank, in the city of New York, seventeen 50-100 dollars, on the first day of January 1889, for six months' interest on bond No. ___. 'JOHN H. ANDERSON, 'JOHN GUERIN, 'OLIVER R. STEELE, 'Commissioners.' One-fifth of the whole amount of bonds was signed by the commissioners and delivered to the railroad company on the sixteenth of January, 1869, was registered on the eighteenth of the same month, and was afterwards put in circulation by the company. Upon a bill filed by certain tax-payers of an adjoining township in the spring of 1869, the court of chancery of New Jersey restrained the issue of like bonds, for want of the consent of a majority of all the tax-payers of the township. Lane v. Schomp, 5 C. E. Green, 82. The commissioners thereupon obtained, and filed in the county clerk's office on the first of September, 1869, the written consent of other tax-payers, which, with those whose consent had been previously filed, constituted a majority of all the tax-payers in the township, with similar affidavits of commissioner and assessor; and the remaining four-fifths of the bonds were afterwards issued and registered, and put in circulation. Of the bonds in controversy, some were issued before, and some after, the first of September, 1869. The commissioners intended to issue, and supposed that they had issued, perfect bonds, and their failure to affix their seals to the bonds was by oversight and mistake. The bonds were purchased by the present owners in good faith, in open market, for the then market price of from 85 to 100 cents on a dollar, and without observing that they had no seals. Cyrus Curtis, a citizen of New York, (of whom the appellee in the first case is the executor,) held and owned such bonds to the amount of $2,000, and held like bonds to the amount of $3,000, owned by other citizens of New York, in amounts varying from $1,300 to $500 each, except that one owned only $200, and delivered by them to him solely for the purpose of bringing suit on the coupons; and also held coupons, past due and unpaid, upon like bonds to the amount of $18,600, owned by citizens of New Jersey, who had assigned those coupons to him for the sole purpose of collecting the amount thereof. Thomas H. Morrison and Gardner S. Hutchinson, citizens of New York, (the appellees in the second case,) held and owned such bonds to the amount of $10,000, and also held like bonds to the amount of $12,000, owned by other persons, citizens of New York or Pennsylvania, in amounts varying from $6,000 to $500 each, as well as bonds to the amount of $5,100, owned by citizens of New Jersey, all which bonds had been transferred to them by the owners for the mere purpose of collecting the unpaid coupons thereon. In April, 1874, actions of debt were brought by Curtis, and by Morrison and Hutchinson against the township, in the circuit court of the United States for the district of New Jersey, to recover the amount of unpaid coupons for three years' interest on all the bonds so held by the plaintiffs; to which the township pleaded that the bonds were not sealed by the commissioners. The plaintiffs in each of those actions thereupon, in the spring of 1876, after requesting the two surviving commissioners (the third having died meanwhile) to affix their seals to the bonds, which they declined to do unless by order of some court of competent jurisdiction, filed a bill in equity in the same court, praying for a reformation of the bonds; for an order that the surviving commissioners affix seals opposite the signatures; for a decree that the bonds should be deemed and taken to be as valid and effectual in law as if they had been in fact sealed by the commissioners before being issued; for a perpetual injunction against the setting up of the want of seals as a defense in the action already brought, or in any future action by the plaintiffs to recover principal or interest, due or to grow due, on the bonds; and for further relief. Demurrers to the bills were interposed and overruled; answers and replications were filed, and a hearing was had upon pleadings and proofs. At the hearing, it was objected, in behalf of the township, that the plaintiffs, if entitled to any relief, could maintain their bills so far only as concerned the bonds that were both owned and held by them, and not as regarded the bonds owned by other persons. The court overruled the objection, and entered a final decree upon each bill that the bonds, or writings in the nature of bonds, therein described, be held and deemed to be as valid and effectual in law as if they had been in fact sealed by the commissioners before being issued; and that the township be perpetually enjoined from setting up the want of seals in the action at law already brought, or in any action to be thereafter brought, upon any of these bonds or coupons. From those decrees the township has appealed to this court. It was contended in behalf of the township that the bonds were void—First, because they were not under the seals of the commissioners, as required by the statute; second, because the statute did not authorize the issue of bonds with annexed and detachable coupons not under seal; third, because the consent of the tax-payers to the borrowing of money and issue of the bonds was obtained by fraud; fourth, because the consent of a majority of all the tax-payers, as well as of those who represented a majority of the landed property of the township, was not obtained before the subscription for stock and the issue of the bonds; fifth, because the bonds were issued by the commissioners directly to the railroad corporation in exchange for stock, instead of being sold or disposed of by the commissioners, and the money thus obtained applied to the purchase of stock, as required by the statute. In dealing with these objections, it must be borne in mind that the cases before us are not actions at law upon the bonds or coupons, but bills in equity to restrain the township from setting up the want of seals in the actions at law heretofore brought by these plaintiffs against the township to recover the amount of the coupons; and the objections above recited are to be considered so far only as they affect the question whether the bills can be maintained. It has been settled, upon fundamental principles of equity jurisprudence, by many precedents of high authority, that when the seal of a party, required to make an instrument valid and effectual at law, has been omitted by accident or mistake, a court of chancery, in order to carry out his intention, will, at the suit of those who are justly and equitably entitled to the benefit of the instrument, adjudge it to be as valid as if it had been sealed, and will grant relief accordingly, either by compelling the seal to be affixed, or by restraining the setting up of the want of it to defeat a recovery at law. Smith v. Ashton, Freem. Ch. 308; S. C. Cas. t. Finch, 273; Cockerell v. Cholmeley, 1 Russ. & M. 418, 424; Wadsworth v. Wendell, 5 Johns. Ch. 224; Montville v. Haughton, 7 Conn. 543; Rutland v. Paige, 24 Vt. 181. See, also. Wiser v. Blachly, 1 Johns. Ch. 607; Green v. Morris & Essex R. Co. 1 Beasl. 165, and 2 McCart. 469; Druiff v. Parker, L. R. 5 Eq. 131. By the necessary effect and the very terms of the statute of New Jersey of 1868, the money is borrowed on the credit of the township, the stock obtained by the disposal of the bonds belongs to the township, the bonds are issued on behalf of the township, and are the bonds of the township, and the commissioners, though not elected by the township, but otherwise appointed as provided by the statute, act in issuing the bonds, and in doing everything else that they are required by the statute to do, as the agents of the township. This view has been affirmed by the judgment of the supreme court of New Jersey, construing this very statute, in Morrison v. Bernards, 7 Vroom, 219, and by the judgment of this court upon the effect of a similar statute of New York in Draper v. Springport, 104 U. S. 501. In Draper v. Springport it was held that the mere fact that the commissioners had only signed, without sealing, the bonds, did not exempt the town from liability to a purchaser thereof in good faith and for valuable consideration. And Mr. Justice BRADLEY, in delivering judgment, said: 'It is apparent from the law that the substantial thing authorized to be done on behalf of the town was to pledge the credit of the town in aid of the railroad company in the construction of its road, by subscribing to its capital stock, and issuing the obligations of the town in payment thereof. The technical form of the obligations was a matter of form rather than of substance. The issue of bonds under seal, as contradistinguished from bonds or obligations without a seal, was merely a directory requirement. The town, indeed, had no seal; and the individual seals of the commissioners would have had no legal efficacy; for the bonds were not their obligations, but the obligations of the town; and their seals could have added nothing to the solemnity of the instruments.' 'We cannot agree with the courts of the state that the form of a seal was an essential part of the transaction.' It was argued that the power conferred upon the commissioners to issue bonds was a statutory power, defects in the execution of which could not be supplied or relieved against in equity. There is much learning on this subject in the books. But Mr. Chance, upon a full review of the older cases, has clearly demonstrated that the true ground upon which equity grants relief is 'the same as that on which it relieves against the want of livery, the want of enrollment, or any other ceremony required, either at common law or by statute, but considered as not meant to be positively essential. The main point to be ascertained, at least with reference to forms prescribed by act of parliament, is whether the legislature has attached a decisive weight to the observance of the forms.' Chance, Powers, § 2989. See, also, 2 Sugd. Powers, (7th Ed.) 125-129. In Darlington v. Pulteney, Cowp. 260, 267, Lord MANSFIELD said that the reason why equity could not relieve from defects in the execution of statutory powers to make leases, was 'that there is nothing to affect the conscience of the remainder-man.' And in De Riemer v. Cantillon, 4 Johns. Ch. 85, where a sheriff's deed of land sold by him on execution omitted, by mistake in the description, an important part of the estate advertised and intended to be sold and purchased, and the purchaser, with the consent of the judgment debtors, took possession of and improved the whole, and afterwards, at their request, sold it, and conveyed by a like description, all parties understanding and believing that the whole was included in both deeds, and the price paid by the second purchaser being estimated on this basis, Chancellor KENT, upon a bill in equity filed by the last purchaser against the debtors, restrained them from prosecuting suits brought against him for the recovery of the land not included in the description, and decreed that they should release it to him. In the present case, the commissioners, in issuing the bonds, acted rather in the capacity of agents of the township than as donees of a statutory power in the ordinary sense; and the direction of the statute that the bonds should be under the seals, as well as the hands, of the commissioners, was declared by this court in Draper v. Springport, supra, to be 'a matter of form rather than of substance,' 'merely a directory requirement,' and not 'an essential part of the transaction.' The bonds are, in other respects, in the form prescribed by the statute. The commissioners intended to issue them in behalf of the town, pursuant to the statute, and stated on the face of the bonds that they had done so, and that they had thereto set their hands and seals. The town received full consideration for the bonds, and the purchaser bought them in open market, in good faith and for value, and in ignorance of the want of seals. These facts present a strong case for the interposition of a court of equity, having jurisdiction of the cause and of the parties, to prevent the formal defect of the want of the seals of the commissioners from being set up to defeat an action at law upon the bonds or coupons. The mere fact that the purchasers, at the time of their purchase, did not observe the omission of seals upon securities having in all other respects the appearance of municipal bonds, is not such negligence as should prevent them from applying to a court of equity to correct a mistake of this character. See Wadsworth v. Wendell and Montville v. Haughton, supra; Harris v. Pepperell, L. R. 5 Eq. 1; Elliott v. Sackett, 108 U. S. ——; [S. C. 2 SUP. CT. REP. 375.] The objection that the statute did not authorize the bonds to be issued with coupons, if it is of any validity, (which we do not intimate,) will be fully open to the defendant in the actions at law upon the coupons. The suggestion that the consent of the tax-payers to the issue of the bonds was obtained by fraud is not supported by the evidence. The consent of a majority of all the tax-payers of the township has been held necessary by the court of chancery and by the supreme court of New Jersey. The chancellor, in granting an injunction against the issue of bonds without such consent, expressed the opinion that the want of such consent would afford no defense at law after the bonds had been once issued, and had come into the hands of innocent holders for value. The supreme court decided otherwise. Lane v. Schomp, 5 C. E. Green, 82; Morrison v. Bernards, 7 Vroom, 219. The question has not, so far as we are informed, been passed upon by the court of errors. The exchange of the bonds directly for railroad stock would seem, in the absence of any decision in the courts of the state upon the point, to be a substantial compliance with the statute, or, at the most, a matter which would not defeat the rights of a bona fide purchaser. See Scipio v. Wright, 101 U. S. 665; Montclair v. Ramsdell, 107 U. S. 147, 160; [S. C. 2 SUP. CT. REP. 391.] But if either the want of a written consent of a majority of all the tax-payers, or the fact that the bonds were issued directly in exchange for stock, is a fatal objection as against a purchaser for value and in good faith, it may be availed of by the township in the actions at law on the coupons. If these objections are not of that character, they do not impair the equity of the purchasers to relief against the accidental omission of the seals of the commissioners. The validity of both these objections, therefore, may be more appropriately determined in the actions at law. The remaining question argued at the bar is how far the citizenship of the real parties in interest, and the amount of the claim of each, should affect the exercise of jurisdiction, and the extent of the decree. The position of the plaintiffs is that the bonds and coupons being payable to bearer, they are entitled to sue, at law or in equity, on all the coupons held by them; that the combination of the holders of several claims of moderate amount against the same defendant for the purpose of diminishing and sharing the expense of litigation, was entirely proper, and should be encouraged by the court; that the bonds and coupons owned as well as held by the plaintiffs, and by others not citizens of New Jersey, clearly brought the case within the jurisdiction of the court; and that to deny to citizens of New Jersey the right to transfer their claims to the plaintiffs for the purpose of collection in the same suit would be to discriminate unjustly between the citizens of New Jersey and the citizens of other states. But, in the matter of the jurisdiction of the federal courts, the discrimination between suits between citizens of the same state and suits between citizens of different states is established by the constitution and laws of the United States. And it has been the constant effort of congress and of this court to prevent this discrimination from being evaded by bringing into the federal courts controversies between citizens of the same state. In the judiciary act of 1789, the only express provision to this end was that the circuit court should not 'have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange.' St. Sept. 24, 1789, c. 20, § 11; 1 St. 78; Rev. St. § 629, cl. 1. That provision has been held not to be restricted to actions at law, but to include bills in equity to foreclose mortgages, or to compel the specific performance or enforce the stipulations of contracts. Sheldon v. Sill, 8 How. 441; Corbin v. Black Hawk Co. 105 U. S. 659. In Barney v. Baltimore, 6 Wall. 280, a bill in equity for the partition of real estate and for an account of rents and profits, in the circuit court of the United States for the district of Maryland, by a citizen of Delaware, owning a share in the estate, against citizens of Maryland, owning other shares therein, and to whom the owners of the remaining shares, being citizens of the District of Columbia, and not of any state, and therefore not authorized to sue in the circuit court of the United States, had conveyed their shares without consideration, under an agreement to reconvey upon request, and for the sole purpose of giving jurisdiction to the federal courts, was dismissed, because the grantors were necessary parties to the suit, and because their conveyance, not transferring their real interests to the other parties, was a fraud upon the court. The act of March 3, 1875, c. 137, § 5, directs that if, 'in any suit commenced in a circuit court,' it shall appear to the satisfaction of the court, 'at any time after such suit has been brought,' 'that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable' by the circuit court, that court 'shall proceed no further therein, but shall dismiss the suit,' and shall make such order as to costs as shall be just, and its order of dismissal shall be reviewable in this court on writ of error or appeal. 18 St. pt. 3, p. 470. In Williams v. Nottawa, 104 U. S. 209, decided by this court since the hearing of these cases in the circuit court, an action was brought by Williams, a citizen of Indiana, in the circuit court of the United States for the western district of Michigan, against a township in that state and district, upon its bonds payable to bearer. The action, as the record on file shows, was brought in September, 1874, about six months before the passage of the act of 1875. It appeared that Williams personally owned only three of the bonds, of $100 each, and that the other bonds in suit had been transferred to him solely for the purpose of collection with his own, by the owners thereof, all of whom were citizens of Michigan, except one Tobey, whose bonds amounted to $300 only, and whose citizenship was not disclosed by the record. The circuit court gave judgment for the plaintiff for the amount of the bonds belonging to Williams and to Tobey, and in favor of the township for the remainder. Upon a writ of error sued out by Williams to reverse the judgment in favor of the township, this court held that, in obedience to the act of 1875, the action should be wholly dismissed; because, so far as concerned the bonds owned by citizens of Michigan, who could not sue a Michigan township in the courts of the United States, it could not be doubted that the transfer to the plaintiff, being colorable only, and never intended to change the ownership, was made for the purpose of 'creating a cause cognizable in the courts of the United States;' and, as to the bonds owned by Williams and by Tobey, there was a collusive joinder, because, when the suit was begun, the amount due to each was less than $500, and therefore insufficient to maintain a suit in the federal courts. The decision in Williams v. Nottawa establishes that the circuit court of the United States cannot, since the act of 1875, entertain a suit upon municipal bonds payable to bearer, the real owners of which have transferred them to the plaintiffs of record for the sole purpose of suing thereon in the courts of the United States for the benefit of such owners, who could not have sued there in their own names, either by reason of their being citizens of the same state as the defendant, or by reason of the insufficient value of their claims. The principle of that decision is equally applicable to suits in equity to assert equitable rights under such bonds. It was argued that these bills in equity were only auxiliary to the actions at law, which were brought before the passage of the act of 1875, and therefore that act had no application. The answer to this is twofold: First. The bills in equity, filed since the passage of the act, are independent suits, of broader aim than the actions at law. The actions at law are to recover the amount of coupons only; the bills in equity seek not merely an injunction against setting up the defense of want of seals in the pending actions on the coupons, but also a decree declaring that the bonds shall be deemed valid. Second. Even the actions at law, brought before the passage of the act of 1875, are subject, under the adjudication in Williams v. Nottawa, to be dismissed in whole or in part, as the facts may require, in the court in which they are pending. It follows that these bills should have been dismissed so far as regarded the bond for $200 owned by a citizen of New York in the first case, and also as to all the bonds owned by citizens of New Jersey in either case. But no valid objection has been shown to the maintenance of these bills so far as regards those bonds of which the plaintiffs are the bearers, and which are actually owned either by themselves, or by other citizens of New York or Pennsylvania, to a sufficient amount by each owner to sustain the jurisdiction of the circuit court. Thompson v. Perrine, 106 U. S. 589; [S. C. 1 SUP. CT. REP. 564, 568;] Chickaming v. Carpenter, 106 U. S. 663; [S. C. 1 SUP. CT. REP. 620;] Douglas Commissioners v. Bolles, 94 U. S. 104, 109; Cromwell v. Sac Co. Id. 351, 360. The decrees of the circuit court must be modified accordingly. The decrees in favor of the appellees being reversed as to a large part of their claims, they should pay costs in this court; but as they still maintain their bills as to the rest of their claims, they should recover costs in the court below. The decrees of the circuit court are reversed, and the cases remanded, with directions to enter decrees in conformity with this opinion. Mr. Justice FIELD took no part in this decision.
109.US.618	1. When a contract with the United States for building a wall provides that payment for the work contracted for shall not be made until an agent, to be designated by the United States, certifies that it is in all respects as contracted for, and after completion of work the designated agent refuses to give the certificate, and there is no fraud, nor such gross mistake as would necessarily imply-bad faith, nor failure to exercise honest judgment on the part of the agent, the engineer's certificate is a condition precedent to payment. 2. The ruling in Kihlberg v. United States, 97 U. S.8 98, adhered to, and applied to this case.	This judgment is affirmed on the authority of Kihlberg v. U. S. 97 U. S. 398. It was provided in the contract that payment for the wall was not to be made until some officer of the army, civil engineer, or other agent, to be designated by the United States, had certified, after inspection, 'that it was in all respects as contracted for.' The officer of the army designated under this authority expressly refused to give the necessary certificate, on the ground that neither the material nor the workmanship were such as the contract required. The court below found that there was neither fraud nor such gross mistake as would necessarily imply bad faith, nor any failure to exercise an honest judgment on the part of the officer in making his inspections. The appellant was notified of the defective character of the material and that it would not be accepted before he put it into the wall, and after he had completed his work the wall which he constructed was taken down by order of the quartermastergeneral, and a new one made of other material built in its place. Judgment affirmed.
109.US.146	The Revised Statutes fix the annual salary of an interpreter at four hundred dollms. In 1877 Congress appropriated in gross for such offices "at three hundred dollars per annum," and repeated the appropriation inlike form down to and including the appropriation act of March 3d, 1881. A served as such interpreter from July, 1878, to November, 1882, and was paia at the rate of $300 per annum. In a suit to recover at the rate fixed by the Revised Statutes : Held, that Congress had expressed its purpose to reduce for the time being the salaries of interpreters, and that the claimant could not recover.	It is contended on behalf of the United States that, by the appropriation acts which cover the period for which the appellee claims compensation, congress expressed its purpose to suspend the operation of section 2070 of the Revised Statutes, and to reduce for that period the salaries of the appellee and other interpreters of the same class from $400 to $300 per annum. We think this contention is well founded. The law fixing the salaries of interpreters, as found in section 2070 of the Revised Statutes, was first passed in the Indian appropriation act of February 27, 1851, (9 St. 587.) That act appropriated a gross sum for the pay of interpreters authorized by the act of June 30, 1834, (4 St. 735,) and declared that the salaries of interpreters employed in certain named territories should be $500, and in all others $400 per annum. From the passage of that act down to the passage of the Indian appropriation act of March 3, 1877, (19 St. 271,) the appropriations for the salaries of interpreters were made at those rates. The act last mentioned specifically appropriated for the pay of Indian interpreters the uniform sum of $300 each. This course of legislation was continued for five consecutive years, until the passage of the Indian appropriation act of May 17, 1882, (22 St. 68,) which appropriated the gross sum of $20,000 for the payment of necessary interpreters, to be distributed in the discretion of the secretary of the interior, and repealed section 2070 of the Revised Statutes. A like appropriation was made in the same terms by the Indian appropriation act of March 1, 1883, (22 St. 433.) An examination of this legislation, especially of the Indian appropriation acts, beginning with that of March 3, 1877, down to and including the act of March 3, 1881, which are all similar in their provisions, will clearly reveal the purpose of congress. The act of March 3, 1877, opens with this provision: 'That the following sums be, and they are hereby, appropriated * * * for the purpose of paying the current and contingent expenses of the Indian department and fulfilling treaty stipulations with the various tribes. * * ' Then follow the specific appropriations, and among them the following: 'For the pay of seventy-six interpreters, as follows: * * Seven for the tribes in Nebraska, to be assigned to such agencies as the secretary of the interior may direct, at three hundred dollars per annum, two thousand one hundred dollars.' After the specific appropriation for salaries of interpreters the following clause appears: 'For additional pay of said interpreters, to be distributed in the discretion of the secretary of the interior, six thousand dollars.' All the subsequent Indian appropriation acts, down to and including the act of March 3, 1881, make in the same language the same appropriation for salaries of interpreters, and contain a similar clause for their additional compensation. We find, therefore, this state of legislation: By the Revised Statutes the salaries of interpreters were fixed, some at $400 and some at $500 per annum, with a provision that such compensation should be in full of all emoluments and allowances whatsoever. By the acts in force during the appellee's term of service the appropriation for the annual pay of interpreters was $300 each, and a large sum was set apart for their additional compensation, to be distributed by the secretary of the interior at his discretion. This course of legislation, which was persisted in for five years, distinctly reveals a change in the policy of congress on this subject, namely, that instead of establishing a salary for interpreters at a fixed amount, and cutting off all other emoluments and allowances, congress intended to reduce the salaries and place a fund at the disposal of the secretary of the interior, from which, at his discretion, additional emoluments and allowances might be given to the interpreters. The purpose of congress to suspend the law fixing the salaries of interpreters in Nebraska at $400 per annum, is just as clear as its purpose to suspend the section forbidding any further emoluments and allowances. Our opinion is, therefore, that the intention of congress to fix, by the appropriation acts to which we have called attention, the annual salaries of interpreters for the time covered by those acts at $300 each, is plain upon the face of the statute. The whole question depends on the intention of congress as expressed in the statutes. Whether a simple failure by congress to appropriate any or a sufficient sum to pay the salary of an officer fixed by previous law is of itself an expression of purpose by congress to reduce the salary, we do not now decide. That is not this case. On the contrary, in this case congress has in other ways expressed its purpose to reduce for the time being the salaries of the interpreters. This purpose is of course irreconcilable with the provisions of the Revised Statutes on the same subject, and those provisions must be considered as having been suspended until they were finally repealed by the act of May 17, 1882. As the appellee has been paid in full his salary as fixed by the later acts, which were in force before and during and continued in force after his term of service, he has no cause of action against the United States. It follows that the judgment of the court of claims in his favor must be reversed, and it is so ordered.
109.US.143	When Congress appropriates a sum "in full compensation" of the salary of a public officer, the incumbent cannot recover an additional sum in the court of claims, notwithstanding a prior statute fixes the salary at a largeramount than the sum so appropriated. In such case the earlier act is suspended for the time covered by the appropriation.	The act of June 17, 1870, entitled 'An act to regulate the salaries of chief justices and associate justices in the territories,' (16 St. p. 152; Rev. St. § 1879,) provided as follows: 'The salaries of the chief justices and assocate justices of the territories of New Mexico, Washington, Wyoming, etc., shall be three thousand dollars each per annum.' This statute remaining in force, Congress, on March 3, 1877, passed an act entitled 'An act making appropriations for the legislative, executive, and judicial expenses of the government for the year ending June 30, 1878, and for other purposes.' 19 St. 294. This act declared as follows: 'That the following sums be, and the same are hereby, appropriated out of any money in the treasury not otherwise appropriated, in full compensation for the service of the fiscal year ending June 30, 1878, for the objects hereinafter expressed. * * * 'Government in the Territories. * * * 'Territory of Wyoming. For salaries of governor, chief justice, and two associate judges, at two thousand six hundred dollars each.' The act of June 19, 1878, making appropriations for the fiscal year ending June 30, 1879, contained similar provisions in the same language. 20 St. 178, 194. The act of June 21, 1879, (21 Stat. 23,) making appropriations for the fiscal year ending June 30, 1880, appriated 'the same sums of money and for like purpose (and continuing the same provisions relating thereto) as were appropriated for the fiscal year ending June 30, 1879,' by the act above referred to, making appropriations for that year. With the exception of the words 'in full compensation,' the opening clause of these acts is substantially the same as that used in all other appropriation acts of every description since the foundation of the government. Upon this state of the statute law the question is presented whether from June 30, 1877, up to and including November 26, 1879, the appellee was entitled to a salary at the rate of $3,000 per annum, or at the rate of $2,600 per annum. The contention of appellee is that under the act of June 17, 1870, he was entitled to the salary of $3,000, notwithstanding the subsequent legislation above referred to. We cannot concur in this view. The act of June 17, 1870, fixing the annual salary of appellee at $3,000, was not a contract that the salary should not be reduced during his term of office. Butler v. Pennsylvania, 10 How. 402. Nor was there any provision of the constitution which forbade a reduction. Clinton v. Engelbrecht, 13 Wall. 434. Congress, therefore, could, without the violation of any contract, reduce the salary of appellee, and had the constitutional power to do so. Certain well-settled rules of interpretation are applicable to this case. One is that a legislative act is to be interpreted according to the intention of the legislature apparent upon its face, (Wilkinson v. Leland, 2 Pet. 627;) another, that, if possible, effect must be given to every clause, section, and word of the statute, (Bac. Abr. St. I. 2; Powlter's Case, 11 Coke, 29a, 34a; Potter's Dwarris, St. 194; Op. Justices, 22 Pick. 571;) and a third, that where two acts are in irreconcilable conflict the later repeals the earlier act, even though there be no express repeal. McCool v. Smith, 1 Black, 459; U. S. v. Tynen, 11 Wall. 88; Red Rock v. Henry, 106 U. S. 596; [S. C. 1 SUP. CT. REP. 434;] U. S. v. Irwim, 5 McLean, 178; West v. Pine, 4 Wash. C. C. 691; Britton v. Com. 1 Cush. 302. Applying these rules, we think that the appropriation acts above referred to, so far as they concern the question in hand, are susceptible of but one meaning. Placing side by side the two clauses of the statute which relate to this controversy, their plain effect is to appropriate $2,600 for the salary of the appellee for one year, and to declare that the sum so appropriated shall be in full compensation for his services as chief justice for the year specified. There is no ambiguity and no room for construction. We cannot adopt the view of appellee unless we eliminate from the statute the words 'in full compensation,' which congress, abandoning the long-used form of the appropriation acts has, ex industria, inserted. Our duty is to give them effect. When congress has said that the sum appropriated shall be in full compensation of the services of the appellee, we cannot say that it shall not be in full compensation, and allow him a greater sum. Not only do the words of the statute make the intention of congress manifest, but that intention is plainly repugnant to the former statute, which fixes the yearly salary of the chief justice at $3,000. It is impossible that both acts should stand. No ingenuity can reconcile them. The later act must therefore prevail, and the earlier act must, for the time covered by the appropriation acts above referred to, be considered as suspended. The result of these views is that the judgment of the court of claims, which gives the appellant a salary at the rate of $3,000 per annum from June 30, 1877, to November 26, 1879, must be reversed, and the case remanded to the court of claims with directions to dismiss the petition.
107.US.640	1. Where, within four months before their expiration, letters-patent, covering a single claim for a combination of several elements, are reissued and extended, with the same description as before, but containing in addition to the original claim one for a combination of some of the elements only, the reissue is invalid as to the new claim. 2. Letters-patent for a combination of several elements are not infringed by using less than all the elements. 3. In letters-patent for an improvement in cooling and drying meal during its passage from the millstones to the bolts, the claim was for the arrangement and combination of a fan, producing a suction blast; the meal chest; a spout forming a communication between the fan and the meal chest; a dust room above, to catch the lighter part of the meal thrown upwards by the current of air; a rotating spirally-flanched shaft in the meal chest, conveying the meal to the elevator; a similar shaft in the dust room, conveying the meal dust to the elevator; and the elevator, taking the meal to the bolts. Within four months before the expiration of the letters, they were reissued and extended, with two claims, the one a repetition of the original claim, and the other for the combination of the fan, the communicating spout, the meal chest with the conveying shaft in it, and the elevator, but omitting the dust room with its conveying shaft. Held, that the reissue is valid for the old claim only; and is not infringed by the use of the fan, spout, meal chest with its conveying shaft, elevator, and dust room, without any conveying shaft in the dust room, or other mechanism performing the same function.	This is a bill in equity for the infringement of letters patent for an improvement in means for cooling and drying meal, reissued to John Denchfield and duly assigned to the plaintiffs. The original letters patent to Denchfield were dated April 20, 1858. The reissued letters patent were dated January 16, 1872, and extended for a period of seven years from April 20, 1872. The circuit court held that the first claim of the reissued patent was valid and had been infringed, and entered a decree for the plaintiffs. See 14 Blatchf. C. C. 293. The defendants appealed to this court. The original patent begins by stating that Denchfield has invented 'a new and improved arrangement of means for cooling and drying meal during its passage from the grinding stones to the bolts.' The reissued patent omits, in this connection, the words 'during its passage from the grinding stones to the bolts.' But both the original and the reissue, after referring to the same accompanying drawings, proceed as follows, the words in brackets being inserted in the reissue only: 'This invention consists in the peculiar arrangement of a suction-fan, [conveyor or] conveyors, and elevators, as hereinafter described, whereby the meal, during its passage from the grinding stones to the bolts, is thoroughly dried and cooled within a limited space, the whole forming a simple and economical device.' Then follows a description which is the same in the original patent and in the reissue, and is in substance as follows: The millstones, A, and curbs, are arranged in the ordinary way on the bed, B. Spouts, C, carry the meal from the stones down into a chest, D, which is placed horizontally on the flooring of the mill. This chest is equal in length to the bed, so that all the spouts of the several stones may communicate with it; and it is divided horizontally lengthwise by a zigzag partition having openings in it. Within and at the bottom of this chest is placed a longitudinal shaft, F, having a spiral flanch on it. With one end of this shaft an elevator, F', communicates, which discharges its contents at e. A fan, G, is placed in a suitable box, H. This box communicates with a spout, I, the lower end of which communicates with the chest, D, and the upper end with one end of a chest, J, in the uppermost part of the mill. Within that chest a series of vertical partitions, i, is so placed as to form a winding passage from its communication with the spout, I, to an opening at the opposite end of the chest. That chest also contains a longitudinal shaft, K, having a spiral flanch on it. Both shafts, F, K, are rotated by any proper means. The rest of the specification, and the claim, both in the original patent and in the reissue, differing only by inserting in the reissue the parts printed below in brackets, are as follows: 'The operation is as follows: The meal passes from the stones, A, down the spouts, C, and into the lower part of the chest, D, and is conveyed by the spirally-flanched shaft, F, into the elevators, F', the shaft, F, which is a conveyor, moving the meal in the direction indicated by the arrows, 3. The meal is carried up by the elevators and discharged at e directly into the bolts or into troughs, and may be conveyed by hopper-boys or any suitable conveying device into the bolts. While the meal is thus passed through the stones, A, spouts, C, and the chest, D, a suction blast is produced by the fan, G; said blast absorbing the moisture or vapor which the meal contains, and which is heated or warmed by the friction of the stones, A. The meal, therefore, is dried and cooled, and, in consequence of the time consumed during its passage through the spouts, C, and chest, D, will be perfectly acted upon by the blast, so that all free moisture will be absorbed. A portion of the finer and lighter particles of flour will follow the blast, and will be ejected up through the spout, I, and through the serpentine or winding passage formed by the parts, i, and will settle in the outer end of the chest, J, and be conveyed by the conveyor or flanched shaft, K, to a spout, j, through which it falls into the elevators, F', and unites with the meal which is received by the elevators direct from the chest, D. [This compound arrangement for operating on the meal while passing through the chest, D, and on the escaped flour in the chest, J, returning the latter to the elevators, while it is extremely well adapted for large flouring mills running at high speeds and with a strong suction blast, may not be either necessary or even practicable in all cases. When the grinding friction evolves only a moderate degree of heat, the chest, J, and its apparatus may be dispensed with, for, the blast being moderated to correspond, so small a quantity of the fine flour will be drawn through the spout, I, that such flour may be ejected on the mill floor, and be disposed of in any convenient way so as to enter the bolts.] 'I do not claim forcing a current of air between a pair of millstones, while the same is in operation, for the purpose of keeping the stones in a cool state, and preventing the heating of the grain; for such means, although not very efficient, have been previously used. But I am not aware that parts arranged as herein shown, so as to allow the meal to be subjected to the blast during its entire or nearly entire passage from the stones to the bolts, and insure the perfect drying and cooling of the meal, have been previously used. 'I claim, therefore, as new, and desire to secure by letters patent—— '[1. The arrangement and combination of the suction fan, G, and spout, I, with the meal chest, D, receiving the meal from the grinding stones, and provided with a conveyor shaft, F, and elevator, F', substantially as and for the purpose set forth.] '[2.] The arrangement and combination of the chest[s], D, J, shafts, F, K, elevators, F', fan, G, and spout, I, substantially as and for the purpose herein shown and described.' No new device was invented by Denchfield, but his improvement consisted in a new combination of old means and devices. That combination, as described in the specification of his original patent, includes seven elements, namely: (1) The meal chest, D, at the bottom of the mill, into which the meal falls through the spouts, C, from the millstones; (2) the conveying shaft, F, which takes the meal from this chest into the elevator, F'; (3) the elevator, F', which carries up the meal and discharges it into the bolts or hopper-boys; (4) the fan, G, creating a suction blast, which cools and dries the meal during its passage through the millstones, the spouts, C, and the chest, D; (5) the spout, I, communicating with the fan, and through which the meal dust, following the blast of air, is thrown upwards into the chest, J, at the top of the mill; (6) the chest, J, in which the meal dust settles; (7) the conveying shaft, K, by which the meal dust is carried from this chest into the elevator. The only devices, indeed, which take part in cooling and drying the meal are the meal chest at the bottom of the mill with the rotating shaft in it, the spout by which that chest communicates with the fan, and the fan itself. The other chest or dust room at the top of the mill collects and saves the lighter part of the meal thrown upwards by the fan. The rotating shafts in each chest convey all the meal, after it has been cooled, dried, and collected, to the elevator, and the elevator takes it to the bolts. But the fan, with its communicating spout and meal chest, the dust room, the two conveyors, and the elevator, tend to one result, the cooling and drying of the meal, without waste or loss, 'on its passage from the grinding stones to the bolts;' 'the whole,' as stated at the beginning of the specification, 'forming a simple and economical device;' and the single claim in the original patent is for the arrangement and combination of the seven elements, designating them all with equal distinctness by appropriate letters. The reissue was granted more than 13 years and 8 months after the date of the original patent, and less than four months before that patent would have expired, and contains two claims, the second of which is a repetition of the claim in the original patent. The first claim in the reissue is for a combination of the 'fan, G, and spout, I, with the meal chest, D, receiving the meal from the grinding stones, and provided with a conveyor shaft, F, and elevator, F';' and omits all mention of the dust room, J, and its conveyor shaft, K. This claim, then, is for a combination of five of the seven elements of the combination for which the patent was originally granted. The effect is to enlarge the claim; for, while the original claim was only for these five elements in combination with the other two elements, and would not have been infringed by the use of a combination of the five without the other two, the new claim convers a combination of the five elements, whether used with or without the two others. Prouty v. Ruggles, 16 Pet. 336; Vance v. Campbell, 1 Black, 427; Gould v. Rees, 15 Wall. 187. The statute in force at the time of the issue of the original patent authorized a surrender and reissue whenever any patent was 'inoperative or invalid by reason of a defective or insufficient description or specification, or by reason of the patentee claiming in his specification as his own invention more than he had a right to claim as new.' The statute in force at the time of the reissue made no change in this, except by striking out the words 'description or.' St. July 4, 1836, c. 357, § 13; Rev. St. § 4916. The plaintiffs do not contend that in the original specification the patentee claimed as his own invention more than he had a right to claim as new; or that there is any defect or insufficiency in any part of the description or specification, other than the final claim. The descriptive part is, word for word, the same in the original and in the reissue. It is argued that the claim in the original patent was too much restricted by including in the combination elements which were no part of the real invention, and that this mistake might properly be corrected in the reissue. But there being no error in the descriptive part of the specification, any mistake in the claim, which is the more important part, and upon which other inventors and the public have the right to rely, as defining the limits of the invention patented, would be apparent on the face of the patent and could not escape the notice of any person reading it with the least care and attention. It is plausibly suggested that 'the claim could be made perfect in form, and consistent with the description of all that portion of the apparatus which relates to the invention, by simply striking out the letter of designation for the upper chest, J, and the letter of designation for the conveyor shaft of that chest, K.' But that the inventor did not and does not intend so to amend his claim is conclusively shown by his having repeated the same claim, including these very letters of designation, in the second claim of the reissued patent. His attempt is, while he retains and asserts the original claim in all particulars, to add to it another claim which he did not make, or suggest the possibility of, in the original patent, nor until that patent was about to expire. To uphold such a claim, made so late, would be to disregard the principles governing reissued patents, stated upon great consideration by this court at the last term in the case of Miller v. Brass Co. 104 U. S. 350, and since affirmed in many other cases. James v. Campbell, 104 U. S. 356; Heald v. Rice, Id. 737; Mathews v. Machine Co. 105 U. S. 54; Bantz v. Frantz, Id. 160; Johnson v. Railroad Co. Id. 539; Moffitt v. Rogers, 106 U. S. 423; [S. C. 1 SUP. CT. REP. 70.] The invalidity of the new claim in the reissue does not, indeed, impair the validity of the original claim which is repeated and separately stated in the reissued patent. Under the provisions of the patent act, whenever through inadvertence, accident, or mistake, and without any willful default or intent to defraud or mislead the public, a patentee in his specification has claimed more than that of which he was the original and first inventor or discoverer, his patent is valid for all that part which is truly and justly his own, provided the same is a material and substantial part of the thing patented, and definitely distinguishable from the parts claimed without right; and the patentee, upon seasonably recording in the patent-office a disclaimer in writing of the parts which he did not invent, or to which he has no valid claim, may maintain a suit upon that part which he is entitled to hold, although in a suit brought before the disclaimer he cannot recover costs. Rev. St. §§ 4917, 4922; O'Reilly v. Morse, 15 How. 62, 120, 121; Vance v. Campbell, above cited. A reissued patent is within the letter and the spirit of these provisions. The decree of the circuit court proceeds upon the ground that the first or new claim of the reissue has been infringed; but the plaintiffs' bill is not so restricted, and alleges generally that the defendants have infringed the reissued patent. If the defendants have infringed the second or old claim, the plaintiffs, upon filing a disclaimer of the new one, are entitled to a decree, without costs, for the infringement of the old and valid claim. Considering that the question of the validity of the new claim in the reissue is a question of law upon the face of the patent, and that its validity has been sanctioned by the commissioner of patents in granting the reissue, and upheld by the circuit court, there has been no unreasonable delay in entering a disclaimer; for the plaintiffs were not bound to disclaim until after a judgment of this court upon the question. O$hReilly v. Morse, above cited; Seymour v. McCormick, 19 How. 96. The question then remains to be considered whether the evidence before us shows an infringement by the defendants of the entire combination. It is proved, and not denied, that the apparatus in the defendants' mill is substantially like that described in the plaintiffs' patent, so far as regards the first meal chest, the fan, and the spout connecting with the fan, and also so far as regards the elevator, and the conveying shaft from the first meal chest to the elevator; in short, so far as regards the cooling and drying apparatus proper, and the devices for collecting and conveying the greater part of the meal, after being cooled and dried, to the bolts. The defendants are also proved to have a dust room, by which the light meal dust thrown upwards by the fan through the spout is collected and saved. This part of their apparatus is not, indeed, in form exactly like that of the plaintiffs. The plaintiffs' patent, with the accompanying drawings, describes a single dust room with vertical partitions attached alternately to the floor and to the ceiling, and extending part way of the height, against which partitions the meal dust, as it passes in a serpentine course over one partition and under the next, strikes, and falls to the floor; with an opening at the further end of the room to carry off the air after the meal dust has been deposited. The defendants' dust room consists of two or three successive chambers, communicating by spouts or conductors, against the walls or ceilings of which chambers the meal dust, as it is carried along by the current of air, strikes, and to the floors of which it falls; with a ventilator at the top of the uppermost chamber, through which the current of air passes out, after depositing the meal dust. The defendants' dust room of several chambers, with a ventilator at the top of the uppermost one, performs the same function in substantially the same way, and produces substantially the same result, as the plaintiffs' dust room with the partitions across it. In short, the defendants' dust room, or contrivance for collecting and saving the light meal dust thrown upwards by the fan, is a substantial equivalent for that of the plaintiffs. The defendants have, therefore, infringed this part also of the plaintiffs' combination. Gold v. Rees, above cited; Ives v. Hamilton, 92 U. S. 426; Machine Co. v. Murphy, 97 U. S. 120. The remaining part of the plaintiffs' combination is the conveyor shaft in the dust room, by which the fine meal dust, after it has been collected and saved in that room, is transferred to the elevator and reunited with the rest of the meal. This conveyor performs, indeed, a subordinate function, analogous to that which the other conveying shaft and the elevator perform in regard to the principal part of the meal. But the patentee, in his specification and in his only valid claim, has made each of the conveyors, as well as the elevator, a material part of the combination invented and patented by him. He describes the conveyor shaft in the dust room with the same particularity as the other parts of his combination, and he claims it with equal distinctness. As was said by Mr. Justice BRADLEY, in Water-meter Co. v. Desper, 101 U. S. 332, 337, 'the courts of this county cannot always indulge the same latitude which is exercised by English judges in determining what parts of a machine are or are not material. Our law requires the patentee to specify particularly what he claims to be new, and if he claims a combination of certain elements or parts, we cannot declare that any one of these elements is immaterial. The patentee makes them all material by the restricted form of his claim. We can only decide whether any part omitted by an alleged infringer is supplied by some other device or instrumentality which is its equivalent.' The defendants' mill contains no conveyor shaft in the dust room, and no mechanism which performs the same function of removing the meal there collected. So far as the evidence shows, the meal deposited upon the floor of that room remains there until it is shoveled or swept up by manual labor. Its removal by such means affords no equivalent, in the sense of the patent law, for the automatic action described in the plaintiffs' patent. Eames v. Godfrcy, 1 Wall. 78; Murray v. Clayton, L. R. 10 Ch. 675, note; Clark v. Adie, Id. 667, 675, 676; and 2 App. Cas. 315. The new claim in the reissue being invalid, and the defendants not having infringed the entire combination set forth in the repetition of the old claim, the decree below can neither be upheld upon the new claim, nor modified so as to apply it to the other claim, but must be reversed and the case remanded, with directions to dismiss the bill.
108.US.162	When a suit is brought in a State court, the laws of that State will control in interpreting the provision of a federal statute of limitations as to what is the commencement of suit.	This was a suit to recover back duties in imports paid under protest, commenced in the superior court of the city of New York, before the enactment of the Revised Statutes, and the only question presented by the writ of error is whether the suit was 'brought within 90 days after the decision of the secretary,' as required by the act of June 30, 1864, c. 171, § 14, (13 St. 215,) then in force. The facts are that the decision was made by the secretary on the twenty-eighth of May, 1872, and it was agreed at the trial that the 90 days expired on the twenty-sixth of August. A summons in the case was made out in due form of law, bearing date August 21, 1872, and efforts were made to serve it on the collector without the intervention and efforts of the sheriff; but, failing in this, the summons was, on the twenty-sixth of August, delivered to and received by the sheriff of the county of New York, where the collector resided, with the intent that it should be actually served. Service was in fact made on the 27th: The New York Code of Civil Procedure, § 99, is as follows: 'An action is commenced as to each defendant when the summons is served on him, or on a co-defendant, who is a joint contractor, or otherwise united in interest with him. 'An attempt to commence an action is deemed equivalent to the commencement thereof, within the meaning of this title, when the summons is delivered, with intent that it shall be actually served to the sheriff or other officer of the county in which the defendants, or one of them, usually or last resided.' A suit is brought when in law it is commenced, and we see no significance in the fact that in the legislation of congress on the subject of limitations the word 'commenced' is sometimes used, and at other times the word 'brought.' In this connection the two words evidently mean the same thing, and are used interchangeably. As this suit was begun in a state court of New York, the laws of that state must determine when it was brought, and as that is prescribed by statute, we have no need of inquiry as to the practice in other states or the rules of the common law. As it was conceded that under the decision of this court in Arthur v. Lahey, 96 U. S. 112, the importers were entitled to a verdict if the suit was brought in time, it follows that the instruction of the court to find for the collector was erroneous. The judgment is reversed, and the cause remanded for a new trial.
108.US.553	The facts in this case showed no claim in the plaintiff against the county defendant. The claim, if any, was against the district in the county benefited by the levees which he claims to have constructed. It being conceded that an action at law for the enforcement of the claims set, up in this suit was barred when this suit was brought, no equitable reason was found why the limitation of the statute should not be applied in equity.	The first question presented by this appeal is whether the drafts drawn by levee inspectors on the levee treasurer of the county of Phillips, under the authority of the act of February 16, 1859, 'to provide for making and repairing levees in Desha and Phillips counties,' and the renewal bonds or scrip issued by the county clerk of the county under the provisions of the act of January 15, 1861, to amend the act of February 16, 1859, constitute an indebtedness of the county for which bonds of the county may be demanded under the act of April 29, 1873, 'to authorize certain counties to fund their outstanding indebtedness,' or a money judgment or decree recovered against the county. To this question we have no hesitation in giving an answer in the negative. The act of 1859 provided for the division of the overflowed lands of the counties of Desha and Phillips into levee districts for the purpose of reclaiming the lands, and for the taxation of such lands to pay the expenses incurred in that behalf. The business was to be managed by levee inspectors, at first appointed by the county court of the county, but afterwards elected by the voters of the several levee districts, and payments for work done or expenses incurred were to be made by the drafts of the levee inspectors for the district on the levee treasurer appointed by the county court of the county to receive and disburse according to law all funds raised from levee taxes in the county. Only lands benefited by protection from overflow by the levees could be taxed. These lands were to be selected by a board of three freeholders appointed by the county court of the county for each levee district, and valued for taxation by the levee inspector. The county court was then to levy a tax upon the property charged, to be collected like other taxes, and this tax, when collected, was to be paid over to the levee treasurer, to be by him disbursed on the drafts of the inspectors. The funds collected from each district were to be appropriated to the payment of the drafts of its own inspector. The bonds, scrip, or drafts issued by the county clerk under the act of 1861 were to be renewals of the inspectors' drafts and created no new obligation. Any debt incurred in the levee work was clearly the debt of the levee district, to be discharged through a tax levied by the county court for that special purpose. In this the county court acted, not as the representative of the county, but of the district. In effect the county court and the sheriff of the county were made the officers and agents of the levee district for the levee and collection of the special tax which was required. This tax was not a county tax, but a district tax, levied and assessed under the authority of law by the county court. In levying the tax the court acted for the district, not the county. The cases of County of Cass v. Johnston, 95 U. S. 360, and Davenport v. Dodge Co. 105 U. S. 237, presented entirely different facts. In the case of the county of Cass, the law provided in terms for an issue of bonds in the name of the county, and in that of the county of Davenport we construed the law to be in effect the same. Consequently there were in those cases obligations of the counties payable out of special funds. Here, however, there was a manifest intention to bind the levee districts only by the obligations incurred, and not to make the county, in its political capacity, responsible for the payment of the debts that were created for levee purposes under these laws. The machinery of the county was to be used in the levy and collection of the special taxes required, but the county, as a county, was to be in no way involved. It follows that the prayer for a money decree against the county, as well as that for an exchange of the bonds authorized by the act of 1873 for the orders or warrants held by the appellants, must be denied. The next and only remaining question is, whether the county court of the county can be required, in this suit, to levy and impose taxes on the levee districts to pay the demands. All the demands fell due on or before April 1, 1862. This suit was not brought until December 17, 1877. It was in effect conceded by the counsel for the appellant that an action at law for the enforcement of the claims would have been barred in 10 years from their maturity, adding only the time between December 1, 1862, and March 16, 1864, when the operation of the statute of limitations was suspended. This proceeding is in equity, but on sufficient reason is shown why the limitation of the statute should not be applied. Without, therefore, considering any other objection to the bill and the relief that is asked, we hold that the suit, so far as it seeks to have the tax imposed by the county court, is barred by lapse of time. The decree of the circuit court is affirmed.
108.US.76	1. The history of article X1. of the amendment to the Constitution which provides that the judicial power of the federal courts shall not extend to suits against a State by a citizen of another State, or by citizens or subjects of a foreign State, and the causes which led to its adoption, reviewed. 2. Unless the State prosecuted consents, that amendment prohibits the court from entertaining jurisdiction of a cause in which one State seeks relief against another State on behalf of its citizens, in a matter in -which the State prosecuting has no interest of its own. One State cannot create a controversy with another State, within the meaning of that term as used in the judicial clauses of the Constitution, by assuming the prosecution of debts owing by the other State to its citizens. 8. The relation of one of the United States to its citizens is not that of an indenendent sovereign State to its citizens. A sovereign State seeking redress of another sovereign State on behalf of its citizens can resort to war on refusal, which a State cannot do. 4. The qualifications of the duty of a sovereign State to assume the collection of the debts of its citizens from another sovereign State considered and stated.	Thereupon the state of New York, on the twenty-fifth of April, filed in this court a bill in equity against the state of Louisiana and the officers of the state composing the board of liquidation, with substantially the same averments and the same prayer as in that of the state of New Hampshire. There was, however, a statement in this bill, not in the other, to the effect that many of the consolidated bonds were issued to citizens of the state of New York in exchange for old bonds of Louisiana which they held, and that citizens of New York now hold and own bonds of the same class to a large amount. Testimony has been taken in support of this averment. The first question we have to settle is whether, upon the facts shown, these suits can be maintained in this court. Article 3, § 2, of the constitution provides that the judicial power of the United States shall extend to 'controversies between two or more states,' and 'between a state and citizens of another state.' By the same article and section it is also provided that in cases 'in which a state shall be a party, the supreme court shall have original jurisdiction.' By the judiciary act of 1789, c. 20, § 13, (1 St. 80,) the supreme court was given 'exclusive jurisdiction of all controversies of a civil nature where a state is a party, except between a state and its citizens; and except, also, between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction.' Such being the condition of the law, Alexander Chisholm, as executor of Robert Farquar, commenced an action of assumpsit in this court against the state of Georgia, and process was served on the governor and attorney general. Chisholm v. Georgia, 2 Dall. 419. On the eleventh of August, 1792, after the process was thus served, Mr. Randolph, the attorney general of the United States, as counsel for the plaintiff, moved for a judgment by default on the fourth day of the next term, unless the state should then, after notice, show cause to the contrary. At the next term Mr. Ingersoll and Mr. Dallas presented a written remonstrance and protestation on behalf of the state against the exercise of jurisdiction, but in consequence of positive instructions they declined to argue the question. Mr. Randolph thereupon proceeded alone, and in opening his argument said: 'I did not want the remonstrance of Georgia to satisfy me that the motion which I have made is unpopular. Before the remonstrance was read, I had learnt from the acts of another state, whose will must always be dear to me, that she too condemned it.' On the nineteenth of February, 1793, the judgment of the court was announced and the jurisdiction sustained, four of the justices being in favor of granting the motion and one against it. All the justices who heard the case filed opinions, some of which were very elaborate, and it is evident the subject received the most careful consideration. Mr. Justice WILSON, in his opinion, uses this language, (p. 465:) 'Another declared object (of the constitution) is, 'to establish justice.' This points, in a particular manner, to the judicial authority. And when we view this object in conjunction with the declaration 'that no state shall pass a law impairing the obligation of contracts,' we shall probably think that this object points, in a particular manner, to the jurisdiction of the court over the several states. What good purpose could this constitutional provision secure, if a state might pass a law impairing the obligation of its own contracts, and be amenable, for such violation of right, to no controlling judiciary power?' 'The extension of the judiciary power of the United States to such controversies appears to me to be wise, because it is honest, and because it is useful. It is honest, because it provides for doing justice without respect to persons, and, by securing individual citizens as well as states in their respective rights, performs the promise which every free government makes to every free citizen, of equal justice and protection. It is useful, because it is honest; because it leaves not even the most obscure and friendless citizen without means of obtaining justice from a neighboring state; because it obviates occasions of quarrels between states on account of the claims of their respective citizens; because it recognizes and strongly rests on this great moral truth, that justice is the same whether due from one man or a million, or from a million to one man; because it teaches and greatly appreciates the value of our free republican national government, which places all our citizens on an equal footing, and enables each and every of them to obtain justice without any danger of being overborne with the might and number of their opponents; and because it brings into action and enforces the great and glorious principle that the people are the sovereign of this country, and consequently that fellow-citizens and joint sovereigns cannot be degraded by appearing with each other in their own courts to have their controversies determined.' Prior to this decision the public discussions had been confined to the power of the court under the constitution to entertain a suit in favor of a citizen against a state, many of the leading members of the convention arguing, with great force, against it. As soon as the decision was announced, steps were taken to obtain an amendment of the constitution withdrawing jurisdiction. About the time the judgment was rendered, another suit was begun against Massachusetts, and process served on John Hancock, the governor. This led to the convening of the general court of that commonwealth, which passed resolutions instructing the senators and requesting the members of the house of representatives from the state 'to adopt the most speedy and effectual measures in their power to obtain such amendments in the constitution of the United States as will remove any clause or articles of the said constitution which can be construed to imply or justify a decision that a state is compellable to answer in any suit by an individual or individuals in any courts of the United States.' Other states also took active measures in the same direction, and, soon after the next congress came together, the eleventh amendment to the constitution was proposed, and afterwards ratified by the requisite number of states, so as to go into effect on the eighth of January, 1798. That amendment is as follows: 'The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens and subjects of any foreign state.' Under the operation of this amendment the actual owners of the bonds and coupons held by New Hampshire and New York are precluded from prosecuting these suits in their own names. The real question, therefore, is whether they can sue in the name of their respective states after getting the consent of the state, or, to put it in another way, whether a state can allow the use of its name in such a suit for the benefit of one of its citizens. The language of the amendment is, in effect, that the judicial power of the United States shall not extend to any suit commenced or prosecuted by citizens of one state against another state. No one can look at the pleadings and testimony in these cases without being satisfied, beyond all doubt, that they were in legal effect commenced and are now prosecuted solely by the owners of the bonds and coupons. In New Hampshire, before the attorney general is authorized to begin a suit, the owner of the bond must deposit with him a sum of money sufficient to pay all costs and expenses. No compromise can be effected except with the consent of the owner of the claim. No money of the state can be expended in the proceeding, but all expenses must be borne by the owner, who may associate with the attorney general such counsel as he chooses, the state being in no way responsible for fees. All moneys collected are to be kept by the attorney general, as special trustee, separate and a part from the other moneys of the state, and paid over by him to the owner of the claim, after deducting all expenses incurred, not before that time paid by the owner. The bill, although signed by the attorney general, is also signed, and was evidently drawn, by the same counsel who prosecuted the suits for the bondholders in Louisiana, and it is manifested in many ways that both the state and the attorney general are only nominal actors in the proceeding. The bond-owner, whoever he may be, was the promoter and is the manager of the suit. He pays the expenses, is the only one authorized to conclude a compromise, and, if any money is ever collected, it must be paid to him without even passing through the form of getting into the treasury of the state. In New York no special provision is made for compromise or the employment of additional counsel, but the bondholder is required to secure and pay all expenses and gets all the money that is recovered. This state as well as New Hampshire is nothing more nor less than a mere collecting agent of the owners of the bonds and coupons, and while the suits are in the names of the states, they are under the act ual control of individual citizens, and are prosecuted and carried on altogether by and for them. It is contended, however, that, notwithstanding the prohibition of the amendment, the states may prosecute the suits, because, as the 'sovereign and trustee of its citizens,' a state is 'clothed with the right and faculty of making an imperative demand upon another independent state for the payment of debts which it owes to citizens of the former.' There is no doubt but one nation may, if it sees fit, demand of another nation the payment of a debt owing by the latter to a citizen of the former. Such power is well recognized as an incident of national sovereignty, but it involves also the national powers of levying war and making treaties. As was said in U. S. v. Dickelman, 92 U. S. 524, if a sovereign assumes the responsibility of presenting the claim of one of his subjects against another sovereign, the prosecution will be 'as one nation proceeds against another, not by suit in the courts, as of right, but by diplomatic negotiation, or, if need be, by war.' All the rights of the states, as independent nations, were surrendered to the United States. The states are not nations, either as between themselves or towards foreign nations. They are sovereign within their spheres, but their sovereignty stops short of nationality. Their political status at home and abroad is that of states in the United States. They can neither make war nor peace without the consent of the national government. Neither can they, except with like consent, 'enter into any agreement or compact with another state.' Article 1, § 10, cl. 3. But it is said that even if a state, as sovereign trustee for its citizens, did surrender to the national government its power of prosecuting the claims of its citizens against another state by force, it got in lieu the constitutional right of suit in the national courts. There is no principle of international law which makes it the duty of one nation to assume the collection of the claims of its citizens against another nation, if the citizens themselves have ample means of redress without the intervention of their government. Indeed, Sir Robert Phillimore says, in his Commentaries on International Law, vol. 2, (2d Ed.) p. 12: 'As a general rule, the proposition of Martens seems to be correct, that the foreigner can only claim to be put on the same footing as the native creditor of the state.' Whether this be in all respects true or not, it is clear that no nation ought to interfere, except under very extraordinary circumstances, if the citizens can themselves employ the identical and only remedy open to the government if it takes on itself the burden of the prosecution. Under the constitution, as it was originally construed, a citizen of one state could sue another state in the courts of the United States for himself, and obtain the same relief his state could get for him if it should sue. Certainly, when he can sue for himself, there is no necessity for power in his state to sue in his behalf, and we cannot believe it was the intention of the framers of the constitution to allow both remedies in such a case. Therefore, the special remedy, granted to the citizen himself, must be deemed to have been the only remedy the citizen of one state could have under the constitution against another state for the redress of his grievances, except such as the delinquent state saw fit itself to grant. In other words, the giving of the direct remedy to the citizen himself was equivalent to taking away any indirect remedy he might otherwise have claimed, through the intervention of his state, upon any principle of the law of nations. It follows that when the amendment took away the special remedy there was no other left. Nothing was added to the constitution by what was thus done. No power, taken away by the grant of the special remedy, was restored by the amendment. The effect of the amendment was simply to revoke the new right that had been given, and leave the limitations to stand as they were. In the argument of the opinions filed by the several justices in the Chisholm Case, there is not been an intimation that if the citizen could not sue, his state could sue for him. The evident purpose of the amendment, so promptly proposed and finally adopted, was to prohibit all suits against a state by or for citizens of other states, or aliens, without the consent of the state to be sued, and, in our opinion, one state cannot create a controversy with another state, within the meaning of that term as used in the judicial clauses of the constitution, by assuming the prosecution of debts owing by the other state to its citizens. Such being the case, we are satisfied that we are prohibited, both by the letter and the spirit of the constitution, from entertaining these suits, and the bill in each of them is consequently dismissed.
106.US.578	1. Judgment was rendered by the Circuit Court for $1,660.76 against a town, on interest coupons detached from bonds which it had issued under a statute, the unconstitutionality of which it set up as a defence. The bonds were for a larger sum than 5,000. Held, that this court has no jurisdiction to re-examine the judgment. 2. Sections 691 and 692, Rev. Stat., as amended by sect. 3 of the act of Feb. 16, 1875, c. 77, in limiting the appellate jurisdiction of this court in cases of the character therein mentioned, refer to the sum or value of the matter actually in dispute in the suit wherein the judgment or decree sought to be reviewed was rendered, and exclude, in determining such sum or value, any estimate of the effect of the judgment or decree in a subsequent suit between the same or other parties.	This action was brought by the defendants in error, being citizens of Wisconsin, against the plaintiff in error, to recover the amount due upon certain coupons or interest warrants, detached from municipal bonds, alleged to have been issued by the town of Elgin in aid of a railroad company. The defense set up was that the bonds and coupons were void, the statute, under the assumed authority of which they had been issued, being, as was alleged, unconstitutional. The cause was tried by the court without the intervention of a jury, and it is part of the finding of the court that, at the time of rendering the judgment, the defendants in error were the owners of the bonds and coupons mentioned in the complaint, and judgment is given for the amount—$1,660.75—due thereon, being for the interest on 15 bonds of $500 each. The case has been fully presented in argument upon its merits, as they appear from the findings of the court, but as we consider ourselves obliged to dismiss the writ of error for want of jurisdiction, we have considered no other question. This question is anticipated by the counsel for the plaintiff in error, who, while admitting that the amount sued for, and for which judgment was recovered, is less than $5,000, yet maintains that the value of the matter in dispute is in excess of that sum, because the defendants in error, being the holders and owners of the bonds to the amount of $7,500, have obtained, by the present judgment, an adjudication, conclusive upon the plaintiff in error, as an estoppel, of its liability to pay the entire amount of the principal sum. It is true that the point actually litigated and determined in this action was the validity of the bonds, and as between these parties, in any subsequent action upon other coupons, or upon the bonds themselves, this judgment, according to the principles stated in Cromwell v. County of Sac, 94 U. S. 351, might, and as to all questions actually adjudged would, be conclusive as an estoppel. And, accordingly, the plaintiff in error, in support of the jurisdiction of this court, relies on what was said in Troy v. Evans, 97 U. S. 1, that, 'prima facie, the judgment against a defendant in an action for money is the measure of our jurisdiction in his behalf. This prima facie case continues until the contrary is shown; and if jurisdiction is invoked because of the collateral effect a judgment may have in another action, it must appear that the judgment conclusively settles the rights of the parties in a matter actually in dispute, the sum or value of which exceeds the required amount.' The point was not involved in the decision of that case, as the writ of error was in fact dismissed, and what was said in the opinion seems to have been rather intended as a concession for the sake of argument, than as a statement of a conclusion of law. The inference now sought to be drawn from it we are not able to adopt. In our opinion, sections 691 and 692, Rev. St., which limit the jurisdiction of this court, on writs of error and appeal, to review final judgments in civil actions, and final decrees in cases of equity and admiralty and maritime jurisdiction, to those where the matter in dispute, exclusive of costs, exceeds the sum or value of $5,000, have reference to the matter which is directly in dispute, in the particular cause in which the judgment or decree, sought to be reviewed, has been rendered, and do not permit us, for the purpose of determining its sum or value, to estimate its collateral effect in a subsequent suit between the same or other parties. The rule, it is true, is an arbitrary one, as it is based upon a fixed amount, representing pecuniary value, and, for that reason, excludes the jurisdiction of this court in cases which involve rights that, because they are priceless, have no measure in money, (Lee v. Lee, 8 Pet. 44; Pratt v. Fitzhugh, 1 Black, 271; Barry v. Mercein, 5 How. 103; Sparrow v. Strong, 3 Wall. 97;) but, as it draws the boundary line of jurisdiction, it is to be construed with strictness and rigor. As jurisdiction cannot be conferred by consent of parties, but must be given by the law, so it ought not to be extended by doubtful constructions. Undoubtedly, congress, in establishing a rule for determining the appellant jurisdiction of this court, among other reasons of convenience that dictated the adoption of the money value of the matter in dispute, had in view that it was precise and definite. Ordinarily, it would appear in the pleadings and judgment, where the claim must be stated and determined; but where the recovery of specific property, real or personal, is sought, affidavits of value were permitted, from the beginning, as a suitable mode of ascertaining the fact, and bringing it upon the record. Williamson v Kincaid, 4 Dall. 20; Course v. Stead, Id. 22; U. S. v. The Brig Union, 4 Cranch, 216. But the fact of value in excess of the limit must affirmatively appear in the record, as thus constituted, as it is essential to the existence and exercise of jurisdiction. This court will not proceed in any case, unless its right and duty to do so are apparent upon the face of this record. The language of the rule limits, by its own force, the required valuation to the matter in dispute, in the particular action or suit in which the jurisdiction is invoked; and it plainly excludes, by a necessary implication, any estimate of value as to any matter not actually the subject of that litigation. It would be, clearly, a violation of the rule, to add to the value of the matter determined any estimate in money, by reason of the probative force of the judgment itself in some subsequent proceeding. That would often depend upon contingencies, and might be mere conjecture and speculation, while the statute evidently contemplated an actual and present value in money, determined by a mere inspection of the record. The value of the judgment, as an estoppel, depends upon whether it could be used in evidence in a subsequent action between the same parties; and yet, before the principal sum, in the present case, or any future installments of interest, shall have become due, the bonds may have been transferred to a stranger, for or against whom the precent judgment would not be evidence. And, in every such case, it would arise as a jurisdictional question, not how much is the value of the matter finally determined between the parties to the suit, but also whether and in what circumstances, and to what extent, the judgment will conclude other controversies thereafter to arise between them, and thus require the trial and adjudication of issuable matter, both of law and fact, entirely extraneous to the actual litigation, and altogether in anticipation of further controversies, that may never arise. It is not the actual value of the judgment sought to be reviewed which confers jurisdiction, otherwise it might be required to hear evidence that it could not be collected; but it is the nominal or apparent sum or value of the subject-matter of the judgment. It is impossible to foresee into what mazes of speculation and conjecture we may not be led by a departure from the simplicity of the statutory provision. Accordingly, this court has uniformly been strict to adhere to and enforce it. In Grant v. McKee, 1 Pet. 248, it refused to take jurisdiction, because the value of the premises the title to which was involved in that action, was less than the jurisdictional limit, although they were part of a larger tract, held under one title, on which the recovery in ejectment had been obtained against several tenants, whose rights all depended on the same action. Stinson v. Dousman, 20 How. 461, was an action at law for the recovery of rent, where the claim and judgment against the defendant below were less than the amount required to give this court jurisdiction on a writ of error; but in giving judgment for the plaintiff below, for any sum at all, the court necessarily passed upon a defense of the defendant, set up by way of an answer in the nature of a counter-claim, insisting upon an equitable right to a conveyance of the land, out of which, it was alleged, the rent issued, and the value of which was in excess of the limit required for the jurisdiction of the court. The effect of the judgment was to adjust the legal and equitable claims of the parties to the subject of the suit, which was, not merely the amount of the rent claimed, but the title of the respective parties to the land. On that ground alone the jurisdiction of the court was upheld. Gray v. Blanchard, 97 U. S. 564, and Tintsman v. National Bank, 100 U. S. 6, are instances of the strict application of the rule limiting the jurisdiction to the amount actually in dispute in the suit; of which a similar example is found in Parker v. Morrill, ante, 14, decided at the present term. Indeed, so strictly has it been applied, that, in cases where, although the entire matter in dispute in the suit exceeds in value the jurisdictional limit, nevertheless, if there are several and separate interests in that sum, belonging to distinct parties, and constituting distinct causes of action, although actually united in one suit and growing out of the same transaction, the jurisdiction of the court has been constantly denied. We have had occasion to repeat and apply this principle in several cases at the present term. Ex parte Baltimore & Ohio R. Co. ante, 35; Adams v. Crittenden, ante, 92; Farmers' Loan & Trust Co. v. Waterman, ante, 131; Schwed v. Smith, ante, 221. In some of these cases, the value of the matter in dispute, actually determined against the party invoking our appellate jurisdiction, actually was largely in excess of its limit, and yet its exercise was forbidden, because it was divided into distinct claims, no one of which was sufficient of itself to entitle either party to an appeal, although the decision in one was necessarily the same in all, because rendered upon precisely the same state of facts. Russell v. Stansell, 105 U. S. 303. To entertain jurisdiction in the present case would be, in our opinion, to unsettle the principle of construction by which, in all the cases referred to, this court has been guided. The writ of error is accordingly dismissed for want of jurisdiction.
108.US.32	1. Suggestion of the death of a plaintiff in the record, and an order to make his devisees parties, is prima facie evidence of his death for the purposes of the trial. 2. The existence of a deed, and its destruction by fire being proven, it is competent for the party offering it to prove its contents by a witness who knows them. 3. It being shown that a paper produced is a copy of a lost deed (but without the official certificate), the copy is competent evidence. 4. The witnesses to a deed being dead, the execution of the deed is to be proven by proof of the handwriting of the subscribing witnesses. 5. When a deposition has been destroyed by fre, and a copy, admitted to be such, is offered in evidence, it is not sufficient to object that it has not been shown that the witness is dead, or is incompetent to testify, or that the deposition cannot be retaken. It should be also objected that the witness does not live in another State, or more than one hundred miles distant from the place of trial, in )rder to lay ground for excluding the copy. 6. In error the court can consider only the objections specifically taken at the trial. 7. The execution of the deed being proven according to law, slight proof of the identity of the grantor is sufficient. In tracing titles, identity of names is prima facie proof of identity of persons. 8. It is a general rule in the State of Illinois that when a person has executed twa deeds for the same land, the first deed recorded will hold the title. 9. The deed under which the plaintiff claimed was not acknowledged and certified as required by the laws of Illinois to admit it to record. It was, however, recorded. A duly certified copy of this record, and a certified copy of the original memorandum of record were offered, and a witness testified that the deed was a copy of the original deed: Hfeld, that under the decisions of the courts in Illinois, this was proof that such deed and memorandum were of record, so as to give notice to subsequent purchasers.	This was an action of ejectment, originally brought by William B. Morris, in the circuit court of the United States for the northern district of Illinois, against Howard Stebbins, the plaintiff in error, for the recovery of a quarter section of land, originally situate in Madison county, Illinois, but, when the suit was begun, situate in Stark county. Before the final trial of the cause, to-wit, on January 22, 1879, the death of the plaintiff was suggested, and the devisees named in the last will were made parties, as appears by the following entry upon the record of the court: 'Now come the parties by their attorneys, and Thomas Dent, Esq., the attorney of the plaintiff, suggests to the court the death of William B. Morris, and that Maria L. Duncan, Harriet B. Cooledge, and Helen Cooledge are the devisees of said deceased; and, on motion of the plaintiff's attorney, it is ordered by the court that said devisees, Maria L. Duncan, Harriet B. Cooledge, and Helen Cooledge, be made plaintiffs herein.' The defendant pleaded the general issue. The cause was tried by a jury, who returned a verdict for the plaintiffs, upon which judgment was rendered in their favor for the lands in controversy. To reverse that judgment, the defendant in the circuit court has brought the case here upon writ of error. A bill of exceptions was taken upon the trial, from which the following statement of the case is made: Disregarding the order in which the testimony was* introduced, and arranging it chronologically, the plaintiffs below, to prove title in themselves, offered the following evidence: (1) An exemplification of a patent from the United States to one John J. Dunbar for the lands in controversy; (2) a certified copy of a deed for the same lands from John J. Dunbar to William Prout, dated January 6, 1818, said copy being certified to have been made February 3, 1875; (3) a certified copy of a deed for the same lands from William Prout to Joseph Duncan, dated May 2, 1834, and recorded in said county October 29, 1838; (4) certified copy of a decree in chancery in the United States circuit court for the district of Illinois, dated June 9, 1846, rendered in a cause wherein the United States were complainants and the widow and heirs of Joseph Duncan defendants, and of the proceedings under said decree by which the premises in controversy in this suit were sold to the United States; (5) certified copy of the deed to the United States under said decree for the same premises, made by William Thomas, commissioner, dated August 12, 1846, and recorded January 17, 1848; (6) certified copy of a deed for the same premises, dated December 28, 1847, and recorded June 5, 1848, to William W. Corcoran, executed by R. H. Gillett, solicitor of the treasury, in behalf of the United States; (7) certified copy of a deed for the same premises, dated December 20, 1867, and recorded March 12, 1868, from William W. Corcoran to William B. Morris; (8) certified copy of the will of William B. Morris and of the probate thereof, from which it appeared that Maria L. Duncan, Harriet B. Cooledge, and Helen L. Cooledge, the plaintiffs, were his residuary legatees. To sustain the title, which the plaintiffs contended that they derived through these documents, they offered other evidence, which will be noticed hereafter, but they offered no evidence of the death of William B. Morris, the original plaintiff, since the certified copy of his will and of the probate thereof, and the letters testamentary issued thereon. The defendant Stebbins, to show title in his lessor, offered in evidence the following title papers: (1) An exemplification of a patent by the United States to John J. Dunbar, dated January 6, 1818, for the lands in controversy; (2) a certified copy from the recorder's office in Stark county, Illinois, in which county the land is situate, of a deed, dated January 6, 1818, from John J. Dunbar to John Frank, conveying said land in fee, and recorded in said county June 18, 1870; (3) other title deeds, by which the title passed from the heirs of John Frank to Benson S. Scott; (4) the stipulation of plaintiffs that Stebbins, the defendant, was in possession of the land in controversy at the commencement of the suit under said Benson S. Scott as his tenant only, and, at no time, under any other claim. No exceptions were taken by the plaintiffs to the introduction of these title papers by the defendant. The real contest in the case was between the title of the plaintiffs deduced through the deed of Dunbar to Prout, and their subsequent muniments of title put in evidence, and the title of defendant derived through the deed of Dunbar to Frank, and the subsequent conveyances put in evidence by him. The defendant was in possession of the premises sued for. His evidence, which was not excepted to, gave him a prima facie title, and, unless the plaintiffs showed a better title, they should not have recovered the lands in controversy. It is, therefore, only necessary to consider the title which the plaintiffs claim to have shown in themselves. The errors assigned all relate to the admission by the court below of the evidence offered by the plaintiffs to sustain their title, and the charge of the court to the jury upon the effect of that evidence. These assignments of error we shall now proceed to consider. The court admitted as evidence tending to prove the death of William B. Morris, the original plaintiff, the duly-certified copy of his will, and of the probate thereof in the probate court of the county of Suffolk, in the state of Massachusetts, and of the letters testamentary issued thereon, and the court charged the jury, in effect, that this evidence, uncontradicted, was sufficient to show the death of Morris. The admission of this evidence and the charge of the court thereon are assigned for error. Whether the evidence objected to was or was not competent and sufficient to prove the death of Morris, it was clearly competent, the death of Morris being proved, to show title in the plaintiffs. The objection to its admissibility must, therefore, fall, if there was other evidence to show prima facie the death of Morris. We think that the suggestion in the record of the death of Morris, and the order of the court making his devisees parties, was sufficient for this purpose. Section 10 of chapter 1 of the Revised Statutes of Illinois, P. 94, (Hurd, 1880,) provides that 'when there is but one plaintiff, petitioner, or complainant in an action, proceeding, or complaint in law or equity, and he shall die before final judgment or decree, such action, proceeding, or complaint shall not, on that account, abate if the cause of action survive to the heir, devisee, executor, or administrator of such decedent; but any of such to whom the cause of action shall survive may, by suggesting such death upon the record, be substituted as plaintiff, petitioner, or complainant, and prosecute the same as in other cases.' The suggestion of the death of Morris, the sole plaintiff, was made in this case, as the record shows, by counsel for the devisees, both parties being present, and the court made the order, without objection, that the devisees be made plaintiffs in the case. We think that this suggestion, made without objection, and the order of the court thereon, settles prima facie, for the purposes of this case, the fact of the death of the original plaintiff. The statute provides upon whose suggestion of the death of a sole party plaintiff the court shall make his heir or devisee, etc., plaintiff in his stead. It certainly cannot be the fair construction of the statute that a party may stand by and see the suggestion of the death of the opposing party entered of record, and his heir or devisee substituted in his stead, and upon final trial require further proof of the death, at least without some notice of his purpose to raise that particular issue. The death of the plaintiff, after the order of the court, may be considered as settled between the parties for that case, unless some motion is made or issue raised on the part of the defendant by which the fact of the death is controverted. We have been referred to no decision of the supreme court of Illinois where a different rule has been announced. In the case of Milliken v. Martin, 66 Ill. 17, cited by counsel for defendant, the court merely decided that where a party plaintiff had died and his heirs were substituted in his place, they must prove that the person under whom they claimed was seized of the title and that they were his heirs. But the report of the case clearly shows that the point now under consideration was neither decided nor touched. We think, therefore, that the ruling and charge of the court below did not prejudice the defendent. The next assignment of error relates to the admission in evidence by the court of the certified copy of the deed from Dunbar to Prout, and the testimony offered by the plaintiff to sustain such copy. The deed purported to be a conveyance, with covenants of general warranty, by Dunbar to Prout, of the land in controversy, for the consideration of $80. It recited that Dunbar was the patentee thereof, and set out the patent in full. The following is a copy of the in testimonium clause of the deed, of the signatures of the grantor and witnesses, the acknowledgment, affidavit of the grantor of his identity, his receipt for the purchase money, memorandum of registration, and certificate of the recorder of deeds for Madison county, Illinois: 'In witness of all the foregoing I have hereunto affixed my hand and seal, at Washington City, in the county of Washington and District of Columbia, this sixth day of January, one thousand eight hundred and eighteen. 'JOHN J. DUNBAR. [Seal.] 'Signed, sealed, and delivered in the presence of—— 'SAMUEL N. SMALLWOOD. 'JOSEPH CASSIN. 'District of Columbia, County of _____, ss.: 'Be it remembered that on this sixth day of January, 1818, the above-named John J. Dunbarr, who has signed, sealed, and delivered the above instrument of writing, personally came and appeared before us, the undersigned justices of the peace, and acknowledged, in due form of law, the same to be his free act and deed, for the purposes therein set forth, and also gave his consent that the same should be recorded whenever it might be deemed necessary. In witness of all which the said _____ has hereunto affixed his name and has undersigned the same. 'JOHN his X mark. J. DUNBARR. 'Acknowledged before—— 'SAMUEL N. SMALLWOOD. 'JOSEPH CASSIN. 'I, John J. Dunbarr, do declare upon oath that I am the same person intended and named in the above deed, dated the sixth day of January, 1818 and more particularly in the patent therein recited at length, and further, that I was duly placed in possession of the patent for the land conveyed in the above deed, by receiving the same from the general land-office. 'JOHN X J. DUNBARR. 'Sworn and subscribed to before me this seventh day of January, 1818. 'SAMUEL N. SMALLWOOD. 'Received, this sixth day of January, 1818, from William Prout, the sum of $80, being the consideration money expressed in the above deed. 'JOHN his X mark. J. DUNBARR. 'Witness: JOSEPH CASSIN. 'Recorded June 23, 1818. 'State of Illinois, Madison County, ss.: 'I, John D. Heisel, clerk of the circuit court, and ex officio recorder of deeds within and for Madison county, in the state of Illinois, do hereby certify the above and foregoing to be a true, perfect, and complete copy of an instrument of writing or deed of conveyance now appearing of record at my office in book E, pages 154, 155, and 156. 'In witness whereof I have hereunto set my hand and affixed the seal of our said court, at office in the city of Edwardsville, this third day of February, A. D. one thousand eight hundred and seventy-five. '[Seal.] JOHN D. HEISEL, Clerk.' The defendant below objected to the introduction of said certified copy in evidence, because the original deed was not so certified and proven as to make a certified copy from the record competent evidence, under the laws of Illinois. The court, without passing at that time upon the objection, and not then admitting said writing in evidence as a certified copy, permitted the plaintiffs, at their request, to make the following proofs: 'And thereupon,' as the bill of exceptions states, 'the plaintiffs proved, to-wit: '(1) By Mr. Dent, one of the plaintiffs' counsel, that said counsel had had in their possession, prior to the great fire of October 8 and 9, 1871, in Chicago, an original deed corresponding substantially in contents to the writing offered in evidence, except that there was not attached to it the official certificate, dated February 3, 1875; that he had not compared said offered copy with said original, but he believed from recollection that it corresponded with the original, and that he had not made said alleged copy; that said original deed had been sent to said counsel in behalf of Wm. B. Morris, the then plaintiff, for use in this suit, and had been offered in evidence on the first trial; that said original deed had been burned up in the Chicago fire of October 8 and 9, 1871; further, that said original deed had been sent to Washington, and attached as an exhibit to the original depositions of E. J. Middleton and George Collard, hereinafter mentioned, and had subsequently been detached therefrom by leave of the court, and returned to Washington for use in taking the depositions of Henrietta Boone. '(2) The plaintiffs further offered to read in evidence a copy of the original depositions of E. J. Middleton and George Collard, taken de bene esse on September 21, 1870, at Washington, D. C., to which the defendant below objected. It was admitted that the depositions had been correctly copied by an attorney in the cause from the original depositions on file in the case; that the original depositions, with the other files and records of the court, were burned up in the fire at Chicago of October, 1871; that no order of the court had ever been made authorizing the filing of said copy as a substitute for the original depositions, and that no proceedings under any statute had been had for the purpose of restoring said original, but that after said fire the plaintiffs' counsel had procured said copy from the counsel of defendant, and, with his consent, had placed it on file in this cause as a copy of the original depositions. 'The court thereupon overruled each of said objections to the reading of said copy of the depositions, and permitted the contents of said copy to be read in evidence, which was done; to which decision of the court the defendant then and there excepted. 'The contents of said copy so read were as follows: 'That said Middleton and Collard had carefully examined the signatures of Samuel N. Small wood on said original deed purporting to be his in three different places, and aver the said signatures to be the genuine handwriting of said Samuel N. Smallwood; and that said original deed is annexed to their depositions as Exhibit A; that they were personally acquainted with Samuel N. Smallwood in his life-time, and knew his handwriting, having often seen him write, and they have no hesitation in declaring said signatures to be his genuine signatures." The plaintiffs also offered in evidence the deposition of William W. Corcoran, who testified that in 1847 he purchased the lands in controversy from the United States at public sale and paid the purchase money for them into the treasury of the United States, and that, at the time of the purchase, he had no notice of any adverse claim. The plaintiffs further read in evidence a certified copy of a commission from President Monroe, attested by Richard Rush, acting secretary of state, and the seal of the United States, dated April 30, 1817, appointing Joseph Cassin, justice of the peace in the county of Washington, in the District of Columbia, until the end of the next session of the United States senate, and no longer; also a certified copy of a like commission, dated September 1, 1817, appointing Samuel N. Smallwood a justice of the peace of said county until the end of said session, and no longer. The plaintiffs also offered in evidence the deposition of Anthony Hyde, who testified that he was the business agent in Washington City of W. W. Corcoran; that he knew of the purchase of the land in question by said Corcoran in 1847, and of the payment by him of over $22,000 into the treasury of the United States for this and other lands; that from February, 1848, up to the time when his testimony was taken, February 24, 1875, he had attended to all matters touching the tract of land in suit, such as the payment of taxes and the appointment of agents, up to the time of the conveyance thereof by Corcoran to William B. Morris; that he sent the original deed from Dunbar to Prout, attached to the depositions of E. J. Middleton and George Collard, to the counsel of plaintiffs below in Chicago, on October 11, 1870; that said deed was afterwards returned to obtain a deposition of one Mrs. H. H. Boone as to Joseph Cassin's signature, and was afterwards forwarded, attached to a deposition of Mrs. Boone, to the clerk of the United States circuit court at Chicago, on or about January 26, 1871. Hyde further testifies that he had paid the taxes on said lands for Mr. Corcoran from 1847 to 1864, mainly through agents who lived in Illinois, but that he himself had for a year or two paid the taxes directly to the county officers. Assuming, for the present, that the evidence offered to support the deed from Dunbar to Prout was competent and properly admitted, the question is presented whether the deed itself, thus supported, was admissible. We are of the opinion that it was. The existence of the original deed and its destruction in the fire at Chicago, in October, 1871, was distinctly proved by the testimony of Dent, counsel for plaintiffs. He testified that it had been sent to the counsel in Chicago of the original plaintiff in the case; that it had been offered in evidence on the first trial of the case, and had been burned with the other papers and records of the court in the fire mentioned. It was therefore competent for the plaintiffs to prove its contents. Thus, in Riggs v. Taylor, 4 Wheat. 486, this court said: 'The general rule of evidence is, if a party intend to use a deed or any other instrument in evidence he ought to produce the original if he has it in his possession, or if the original is lost or destroyed secondary evidence, which is the best the nature of the case allows, will, in that case, be admitted. The party, after proving any of these circumstances to account for the absence of the original, may read a counterpart, or if there is no counterpart an examined copy, or if there should not be an examined copy he may give parol evidence of its contents.' In the present case it does not appear that there was in existence any counterpart or examined copy of the destroyed deed. The only resource left to the plaintiffs was to prove the contents of the original by a witness who knew its contents. This was done by the deposition of Dent. He testified that the original deed corresponded substantially in contents to the certified copy offered in evidence, except that there was not attached to it the official certificate of the court, dated February 3, 1875. This evidence made the copy competent for the purposes of the trial. Having thus established the fact of the original deed and its contents, the plaintiffs below were in the same position as if the original deed was in their possession and they had offered it in evidence. It remained for them to prove its execution. It has been held by the supreme court of Illinois, that, under the act of February 19, 1819, for establishing a recorder's office, and which was substantially the same as the act of 1807, which was in force when the deed from Dunbar to Prout was executed, a deed is valid as between the parties to it without being acknowledged. Semple v. Miles, 2 Scam. 315. See, also, McConnell v. Reed, Id. 371. Having established by proof the fact that the deed had existed and had been destroyed, and that the copy offered in evidence was a copy of the original, it only remained to prove the signing and sealing of the deed by the grantor. As the witnesses to the deed were shown to be dead, the method pointed out by law to establish the execution of the deed was by proof of the handwriting of the witnesses to the deed. Clark v. Courtney, 5 Pet. 319; Cook v. Woodrow, 5 Cranch, 13. And when there was more than one witness, proof of the handwriting of one was sufficient. 1 Greenl. Ev. § 575; Adams v. Kerr, 1 Bos. & P. 360; 3 Prest. Abst. Tit. 72, 73. By the depositions of Middleton and Collard, which the court admitted in evidence, the handwriting of Samuel N. Smallwood, one of the subscribing witnesses of the deed, was fully proven. His signature also to the acknowledgment of the deed as one of the justices of the peace before whom the acknowledgment was taken, and his signature to the jurat of an oath of identity indorsed on the deed, subscribed and sworn to before him by Dunbar, were proven by the same testimony. The genuineness of the handwriting of Smallwood as a witness to the deed was placed beyond all doubt by the depositions of these witnesses. If, therefore, the evidence by which this proof was made was competent and admissible, the execution of the deed from Dunbar to Prout was established, and the deed itself was properly admitted in evidence. We are next to consider the question whether the copies of the depositions of Middleton and Collard, by which the handwriting of Smallwood was proven, were properly admitted in evidence. This evidence was objected to by the defendant, and his objection was overruled, to which he excepted. The admission of the parties, as appears by the bill of exceptions, showed the existence of the original depositions; that they had been destroyed with the other records of the court in the fire of October, 1871; that the copies were correct copies of the original depositions, and had been furnished by counsel for defendant, and with his consent had been placed on file in the cause as correct copies of the original. The objection made to the introduction of the copies was that the death of the witnesses was not shown, nor was it proven that they were incompetent to testify, and that their depositions could not be retaken; therefore proof of what they had testified in their depositions was not admissible. The rule invoked to exclude copies of the depositions is that in the absence of evidence that the witness who testified in a former trial is dead or incapable of testifying, or that his deposition cannot be retaken, it is not competent to show what his testimony in the former trial was; and that when the deposition of a witness which was read upon a former trial is lost, its contents cannot be proved except after proof of the death of the witness whose testimony it contained. Stout v. Cook, 47 Ill. 530; Aulger v. Smith, 34 Ill. 537. But if the witnesses had lived in another state, and more than a hundred miles distant from the place of trial, proof of the contents of their deposition would have been admissible. Burton v. Driggs, 20 Wall. 125. Therefore, to have made the objection tenable, it should have also been put upon the ground that the witnesses were not shown to reside in another state and more than a hundred miles from the place of trial. This it did not do. When a party excepts to the admission of testimony he is bound to state his objection specifically, and in a proceeding for error he is confined to the objection so taken. Burton v. Driggs, ubi supra. The original depositions were taken in the city of Washington. It is, therefore, probable that the witnesses resided there. If the copy of the depositions had been objected to because it was not shown that the witnesses resided out of the district, and more than a hundred miles from the place where the court was held, the plaintiffs below might have supplied proof of that fact. The objection, as it was made, was not broad enough and specific enough, and was, therefore, properly overruled and the evidence admitted. But we think the rule relied on by defendant to exclude copies of the deposition does not apply to the case in hand. The plaintiffs did not offer oral evidence of the contents of the depositions, but offered copies which were admitted by counsel for defendant to be true copies. It was, therefore, not necessary to retake the depositions or to prove the death of the witnesses, or their incapacity to testify. The copy of the deposition was, by consent, substituted for the original, which was proven to have been destroyed, and, being admitted to be a true copy, spoke for itself. It was, therefore, properly received in evidence. It was further objected to the admission in evidence of the proof relating to the deed of John J. Dunbar to Prout, that as the testimony to establish its execution was the proof of the handwriting of subscribing witnesses, it was necessary to prove the identity of the grantor in the deed; that is to say, that the John J. Dunbar by whom the deed purported to be executed was the same John J. Dunbar named in the patent for the lands in controversy. In any case slight proof of identity is sufficient. Nelson v. Whittall, 1 Barn. & Ald. 19; Warren v. Anderson, 8 Scott, 384; 1 Selw. N. P. 538, note 7,(18th Ed.) But the proof of identity in this case was ample. In tracing titles identity of names is prima facie evidence of identity of persons. Brown v. Metz, 33 Ill. 339; Cates v. Loftus, 3 A. K. Marsh. 202; Gitt v. Watson, 18 Mo. 274; Balbie v. Donaldson, 2 Grant, (Pa.) 450; Bogue v. Bigelow, 29 Vt. 179; Chamblee v. Tarbox, 27 Tex. 139. See, also, Sewell v. Evans, 4 Adol. & E. 626; Roden v. Ryde, Id. 629. There was no evidence that more than one John J. Dunbar lived at the date of the deed in Matthias county, Virginia, which the deed recites was the residence of the grantor, nor in the District of Columbia, where the deed was executed, and there was no other proof to rebut the prima facie presumption raised by the identity of names in the patent and deed. But, besides the identity of names, there was other evidence showing the identity of persons. The patent and the deed bore date the same day, and the patent was cited in hoec verba in the deed. These circumstances tend strongly to show that the party by whom the deed was executed must have had possession of the patent. The deed recites that the patent was delivered to the grantor, John J. Dunbar, and the affidavit of John J. Dunbar, sworn to and subscribed on January 7, 1818, before Smallwood, a justice of the peace, and one of the subscribing witnesses to the deed, whose signature to the jurat is shown to be genuine, to the effect that he was the same John J. Dunbar to whom the patent was issued, was indorsed upon the deed. After a lapse of 61 years, this evidence is not only admissible to prove the identity of the grantee in the patent with the grantor in the deed, but, uncontradicted, is conclusive. We are, therefore, of opinion that the deed from John J. Dunbar to William Prout, which formed a link in the title of the plaintiffs, was sufficiently proven, and was properly admitted in evidence by the circuit court. The other muniments of title put in evidence by the plaintiffs were admitted without objection, and established prima facie their title to the lands in controversy. But it will be remembered that the defendant below had also shown a prima facie title to the lands in question; that both parties traced title through the patent of the United States issued to Dunbar, and through deeds apparently executed by him on the sme day, to-wit, January 6, 1818,—one to William Prout, under which the plaintiffs claimed, and the other to John Frank, under which the defendant claimed. The question, therefore, still remains, which is the superior title? According to the jurisprudence of Illinois, this must be settled by the fact, which of the two deeds, apparently executed by Dunbar, was first recorded. Section 15 of the act approved January 31, 1827, (Purple, Real Est. St. 480,) provided as follows: 'All grants, bargains, sales, etc., of or concerning any lands, whether executed within or without the state, shall be recorded in the recorder's office in the county where such lands are lying, and being within 12 months after the execution of such writings, and every such writing that shall, at any time after the publication hereof, remain more than 12 months after the making of such writing, and shall not be proved and recorded as aforesaid, shall be adjudged fraudulent and void against any subsequent bona fide purchaser or mortgagee for valuable consideration, unless such deed, conveyance, or other writing be recorded as aforesaid, before the proving and recording of the deed, mortgage, or other writing under which any subsequent purchaser or mortgagee shall claim.' This act remains substantially in force. Hurd, Rev. St. p. 271, § 30. By an act, approved July 21, 1837, (Purple, Real Est. St. 496, 497,) it was provided that the recording of any deed, * * * whether executed within or without the state, by the recorder of the county in which the lands intended to be affected are situated, shall be deemed and taken to be notice to subsequent purchasers and creditors from the date of such recording, whether said writing shall have been acknowledged or proven in conformity with the laws of the state or not, and that the provisions of the act shall apply as well to writings heretofore as those hereafter admitted to record. This law is still in force. See Hurd, Rev. St. 1880, p. 271, § 31. It was held by the supreme court of Illinois, in Reed v. Kemp, 16 Ill. 445, that an instrument affecting or relating to real estate may be recorded, though not proven or acknowledged, and the record will operate as constructive notice to subsequent purchasers and creditors. See, also, Choteau v. Jones, 11 Ill. 320; Martin v. Dryden, 1 Gilman, 213. And in Cabeen v. Breckenridge, 48 Ill. 94, the court declared that, 'as a general rule, when the same person has executed two deeds for the same land, the first deed recorded will hold the title.' The evidence shows that the deed of Dunbar to Frank, under which the defendant claimed title, was not recorded until June 18, 1870. The plaintiffs contended that the deed from Dunbar to Prout, under which they claimed, was recorded on June 23, 1818, and it was shown that the deed from Prout to Duncan was recorded October 29, 1838, and the deed of Gillett to Corcoran, June 5, 1848, and the deed of Corcoran to Morris, March 12, 1868. If, therefore, the contention of the plaintiffs that the deed of Dunbar to Prout was recorded June 23, 1818, is sustained by competent proof, their title must prevail. But it is insisted for defendant that there was no competent proof of the registration of the deed of Dunbar to Prout. The proof relied on was the testimony of Dent, that the certified copy from the records of the county of Madison was a copy of the original deed; the certificate of the recorder that the certified copy was a copy of a deed which appeared of record in his office; and the certified copy of a memorandum at the foot of the record of the deed as follows: 'Recorded June 23, 1818.' Conceding that the certified copy of the deed from the records of Madison county would not be proof of the contents of the original deed, because such original deed had not been so acknowledged and certified as to make a certified copy competent evidence, yet the fact that such a record of the deed existed, was, by the law of Illinois, as we have seen, notice to subsequent purchasers. A certified copy from the record was, therefore, a proof that such a deed and memorandum was of record in the proper office. For it is a settled rule of evidence that every document of a public nature which there would be an inconvenience in removing, and which the party has the right to inspect, may be proved by a duly-authenticated copy. Saxton v. Nimms, 14 Mass. 320; Thayer v. Stearns, 1 Pick. 109; Dunning v. Roome, 6 Wend. 651; Dudley v. Grayson, 6 Mon. 259; Bishop v. Cone, 3 N. H. 513; 1 Greenl. Ev. § 484. The memorandum at the foot of the record was the usual record evidence, competent and conclusive, that the deed had been recorded at the date mentioned. It was evidence of the date of the registration of the deed, because it was the duty of the recorder, by the nature of his office and without special statutory direction, to note when the record was made. 1 Greenl. Ev. § 483. But we think it may be fairly inferred from section 10 of the act of September 17, 1807, which was in force when it is claimed that the deed from Dunbar to Prout was recorded, that it was the duty of the recorder to note the time when deeds left with him for record were recorded. He was specifically required to note the date when the deed was received, and was liable to a penalty of $300 for recording any deed in writing 'before another first brought into his office to be recorded.' 1 Adams & D. Real Est. St. 63. The making of a memorandum of the date of record was, therefore, an official act, which naturally fell within the line of his statutory duties, and a certified copy of it would be competent evidence to prove the memorandum and the date of the registration of the deed. We are of opinion, therefore, that the fact that the deed of Dunbar to Prout was recorded on June 23, 1818, was proved by competent evidence, and that it therefore follows that the title of the plaintiffs was better and superior to that of defendants, who claimed under a deed for the same lands not recorded until June 18, 1870, more than 50 years after its date, and long after innocent purchasers had bought the lands and paid a valuable consideration for them. The plaintiff in error contends that the act of 1837, supra, cannot apply in this case, because at its date the lands in question were no longer within the limits of Madison county, but in the county of Putnam. But the act expressly declares that it shall apply to writings theretofore as well as those thereafter admitted to record. The deed of Dunbar to Prout was recorded under the act of 1807, supra, which required it to be recorded in the county where the lands conveyed were situated. It was so recorded. No law of Illinois since passed has required any other registration of deeds by the parties thereto, or has changed the effect of the original registration. See act of February 27, 1841; 1 Adams & D. Real Est. St. 93, 94. The view we have taken of the case renders it unnecessary to notice certain questions of local practice argued by counsel. We find no error in the record of the circuit court. Its judgment must therefore be affirmed.
109.US.232	It is within the discretion of a circuit court of the United States, sitting in the State of Texas, if a plaintiff appears in open court and remits a part of the verdict in his favor, to make the proper reduction and enter judgment actordingly. If by such remission the judgment be reduced to $5,000 or less, errors in the record will be shut out from re-examination, in cases where the jurisdiction of this court depends upon a larger amount being involved m the controversy.	In this case a verdict was rendered against the plaintiff in error for $6,610, and a judgment entered thereon December 9, 1879. In the verdict was included, for damages, $600; attorney's fees, $500; and interest, $510,—in all, $1,610. The next day, December 10, 1879, the defendants in error appeared in open court and 'entered a remittitur' of these amounts, 'leaving the amount of said judgment to be for the amount of five thousand dollars and costs of suit.' Upon this being done a new judgment was entered 'that the plaintiffs have and recover from said defendant the sum of five thousand dollars, and also all costs about this suit incurred as of the date of said judgment, and have execution therefor, instead of the sum of six thousand and six hundred and ten dollars, and also all costs about this suit incurred, as in said judgment is recited.' This writ of error was brought on the eighth of January, 1880, to reverse the judgment so entered. The defendant in error now moves to dismiss the writ because the value of the matter in dispute does not exceed $5,000. The judgment as it stands is for $5,000 and no more. The entry of the tenth of December is equivalent to setting aside the judgment of the ninth and entering a new one for the amount remaining due after deducting from the verdict the sum remitted in open court. There was nothing to prevent this being done during the term and before error brought. The judgment of the tenth is therefore the final judgment in the action. In Thompson v. Butler, 95 U. S. 696, it was said:'Undoubtedly the trial court may refuse to permit a verdict to be reduced by a plaintiff upon his own motion; and if the object of the reduction is to deprive an appellate court of its jurisdiction in a meritorious case, it is to be presumed the trial court will not allow it to be done. If, however, the reduction is permitted, the errors in the record will be shut out from our reexamination in cases where our jurisdiction depends on the amount in controversy.' Articles 1351 and 1352 of the Revised Statutes of Texas are as follows: 'Art. 1351. Any party in whose favor a verdict has been rendered may in open court remit any part of such verdict, and such remitter shall be noted on the docket and entered in the minutes, and execution shall thereafter issue for the balance only of such judgment, after deducting the amount remitted. 'Art. 1352. Any person in whose favor a judgment has been rendered may in open court remit any part of such judgment, and such remitter shall be noted on the docket and entered in the minutes, and execution shall thereafter issue for the balance only of such judgment, after deducting the amount remitted.' Rev. St. Texas, 1879, pp. 211, 212. Without deciding what effect these statutes will have on our jurisdiction in cases coming up from that state, if the amount is remitted after judgment without any action thereon by the court other than noting on the docket and entering on the minutes what has been done, we are of opinion that it is within the discretion of a court of the United States, sitting in that state, if a plaintiff appears in open court and remits a part of a verdict in his favor, to make the proper reduction and enter judgment accordingly. That was the effect of what was done in this case, and the rule established in Thompson v. Butler, supra, applies. The motion to dismiss is therefore granted.
109.US.275	A creditor of A obtained judgment against him. He levied on capital stock in a corporation claimed by B under an assignment from A, and in the original suit summoned B as garnishee of A to answer. Pending these proceedings A died, and his administrator was substituted as defendant. B and the administrator were offered as witnesses on B's behalf in regard to the transactions at the time of the assignment: Held, That each was a competent witness on his own motion, notwithstanding the proviso in § 858 Rev.S tat., "That in actions by or against executors, administrators, or guardians in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward unless called to testify thereto by the opposite party or required to testify thereto by the court."	The plaintiff in error having recovered a judgment for $9,056.12 against Alfred Patterson, in the circuit court of the United States for the western district of Pennsylvania, caused an execution attachment to be issued against the Fayette County Railroad Company and Samuel H. Jacobus, the defendant in error, attaching as the property of Patterson certain shares of the capital stock of that company which stood in the name of Jacobus. The attachment was duly served upon Patterson, Jacobus, and the railroad company. The controlling issue in the case is whether the stock was the property of Alfred Patterson and liable to be attached in satisfaction of the judgment against him. Jacobus claims that the stock became his property in virtue of an unrecorded assignment and transfer for a valuable consideration by Alfred Patterson prior to the rendition of that judgment; consequently, that it is not liable to the bank's attachment. In the progress of the litigation Patterson died, and his administrator was substituted of record as a party defendant. The contention on the part of the bank is that the assignment was by an insolvent debtor in trust for certain preferred creditors, and that it must have been recorded in order to protect the stock from the attachment of judgment creditors; that of Jacobus is that the assignment was made in consideration of his assumption of certain liabilities of the debtor, and without any intent upon the part of either himself or Patterson to hinder, delay, or defraud the creditors of the latter. At the trial, Jacobus, a witness in his own behalf, was allowed, over the objections of plaintiff, to testify as to what took place between him and Patterson at the time the stock in question was assigned by the latter to the former. The administrator was also permitted, over the objection of the plaintiff, to prove—he being present on the occasion of the assignment—that the assumption by Jacobus of certain debts of Patterson's was in consideration and on the faith of the transfer of this stock. This testimony bore directly upon the controlling issue in the case between the bank and Jacobus. Whether Jacobus and the administrator of Patterson were competent witnesses depends upon the construction of section 858 of the Revised Statutes, which provides that 'in the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried: provided, that in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court.'In Potter v. Nat. Bank, 102 U. S. 163, we held that in actions in which judgment may be rendered for or against an executor, administrator, or guardian, it is no objection to the competency of the witness that he is interested in the issue to be tried, because, in such cases, the statute excluded only parties to the record; that is, those who, according to the established rules of pleading and evidence, are parties to the issue. It is now argued by plaintiff in error that Jacobus, as well as the administrator of Alfred Patterson, are parties to the record, and, unless called by the court or the opposite party, are incompetent to testify as to any transactions or statements by the intestate. We are of opinion that they were each competent as a witness on the issue between the bank and Jacobus, as to whether these shares of stock were the property of the latter, and subject to the former's attachment. The liability of Alfred Patterson to the bank had become fixed by the judgment against him for the debt. There can be no judgment against his estate, in this action, by which the amount of the bank's claim can be increased, or whereby Patterson's estate can be released from liability in whole or in part. The real issue was between the bank and Jacobus, and consequently the case is within the first clause of section 858, which provides that 'no witness shall be excluded * * * in any civil action because he is a party to or interested in the issue tried.' Within the meaning and object of the proviso, this is not an action by or against an administrator, on which judgment may be rendered for or against him. We are of opinion that there was no error in admitting Jacobus or the administrator of Patterson to testify on their own motion. In reference to the merits of the case, we no dot perceive that any error was committed by the circuit court. The jury were properly instructed as to the law of the case. The 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.
108.US.161	This case involves no law.. On the facts the decree of the State court is. affirmed.	This was a suit in equity brought in a state court of Tennessee by Barton, as assignee in bankruptcy of Kessler & Harmon, to set aside a conveyance made by Kessler, one of the bankrupts, to Geiler, and the only question presented by the writ of error is whether, upon the testimony embodied in the record, and considered by the supreme court of Tennessee in the determination of the cause, it should have been found that the conveyance was in fraud of the bankrupt law. The question is entirely one of fact. There can be no dispute about the law. It is sufficient to say that, after a careful examination of the testimony, we are satisfied with the conclusion finally reached below. It would serve no useful purpose to set forth in an opinion the details of the evidence, or to enter into any discussion as to its effect. The decree of the supreme court of Tennessee is affirmed.
109.US.504	A, having acquired the right to occupy a tract of land in Salt Lake City, took possession of it and erected a public house thereon, and lived in it with his wife and B, his polygamous wife, carrying on a hotel there. He ceased to maintain relations with B, as his polygamous wife, but he being desirous to have the benefit of her services, both concealed this fact. He made a secret agreement with her, that if she would thus remain she should have one-half interestin the property. Ie acquired title to the property from the mayor under the provisions of the act of March 2, 1867, 14 Stat. 541, without any disclosure of the secret agreement. Subsequently A's interest therein passed into the hands of innocent third parties for value, without notice of the claim of B under the secret agreement: Held, 1. That B had no rights in the premises as against innocent bona fide encumbrancers and purchasers without notice of her claim. 2. That the joint occupation of the premises by A and B, under the circumstances, was no constructive notice of B's claim of right. 8. The territorial act under which a deed of the property was made to A by the mayor, directed that "deeds of conveyance of the same shall be 6xecuted by the mayor of the city or town, under seal of the corporation." A general'act of the Territory at the time the deed was made required deeds to be witnessed. The deed to A bore thb corporate seal, as required by the special act; but was not witnessed: Held, that the special act controlled the general act, and that the deed was good.	The facts found by the court leave no ground for the as against Townsend, had he continued the owner of the premises in controversy, she certainly has none against innocent bona fide incumbrancers and purchasers, without notice of her claim. The arrangement between Townsend and the appellant was a secret agreement known only to themselves, and, as found by the court, they, after the agreement, continued to live together, as they had previously done, in order that the public might not know that any change had taken place in their relations to each other. A secret agreement, as between herself and Townsend, which they purposely kept concealed, cannot be set up against bona fide purchasers without notice. The finding of the court that neither Hooper, Jennings, nor Roberts had notice, either actual or constructive, of appellant's alleged rights, cuts up by the roots all claim on her part as against them to the premises in controversy. Appellant contends, however, that her joint physical occupancy with Townsend of the premises, as found by the court, was constructive notice to the defendants Hooper and Jennings of her alleged rights, and that they, therefore, purchased in subservience thereto. When Townsend, in 1866, entered into possession of the premises which he had previously bought with his own money, he took with him his lawful wife and the appellant, his polygamous wife. At that time it is not disputed that he was the sole occupant under the act of congress. The appellant was no more a joint possessor at that time than any servant or guest of the hotel. A secret agreement subsequently entered into between Townsend and the appellant, and purposely kept concealed from the public by them, cannot be held to change the nature of Townsend's occupancy so as to affect with constructive notice persons who had no actual notice. Constructive notice is defined to be in its nature no more than evidence of notice, the presumption of which is so violent that the court will not even allow of its being controverted. Plumb v. Fluitt, 2 Anstr. 438; Kennedy v. Green, 3 Mylne & K. 719. Where possession is relied on as giving constructive notice it must be open and unambiguous, and not liable to be misunderstood or misconstrued. Ely v. Wilcox, 20 Wis. 523; Patten v. Moore, 32 N. H. 384; Billington v. Welsh, 5 Bin. 132. It must be sufficiently distinct and unequivocal so as to put the purchaser on his guard. Butler v. Stevens, 26 Me. 484; Wright v. Wood, 11 Harr. (Pa.) 130; Bogue v. Williams, 48 Ill. 371. As said by STRONG, J., in Meehan v. Williams, 12 Wright, 238, what makes inquiry a duty is such a visible state of things as is inconsistent with a perfect right in him who proposes to sell. See, also, Holmes v. Stout, 3 Green, Ch. 492; McMechan v. Griffing, 3 Pick. 149; Hanrick v. Thompson, 9 Ala. 409. Tested by these rules, it is plain that the physical occupancy of the premises in question by appellant, as found by the district court, was not such possession as to put a purchaser on inquiry and charge him with constructive notice. On the contrary, viewed in connection with the other facts found, it was such as to mislead him. The case of appellant is therefore an attempt to set up a secret trust as against bona fide purchasers for value without notice. But nothing is clearer than that a purchaser for a valuable consideration, without notice of a pior equitable right, obtaining the legal estate at the time of his purchase, is entitled to priority in equity as well as at law, according to the well-known maxim that when equities are equal the law shall prevail. Williams v. Jackson, 107 U. S. 478; [2 SUP. CT. REP. 814;] Willoughby v. Willoughby, 1 Term Rep. 763; Carlton v. Low, 3 P. Wms. 328; Ex parte Knott, 11 Ves. Jr. 609; Tildesley v. Lodge, 3 Smale & G. 543; Shine v. Gough, 1 Ball & B. 436; Bowen v. Evans, 1 Jones & La. T. 178; Vattier v. Hinde, 7 Pet. 252. This is the case of defendants Hooper and Jennings. The appellant contends, however, that as the deed executed by the mayor of Salt Lake City to Townsend was without witnesses, as required by the general law of the territory, it did not convey the legal title. But the act of the territorial legislature providing for the conveyance to occupants, by the mayor, of lands included in the town-site, did not require witnesses to his deed. It merely directed that 'deeds of conveyance for the same shall be executed by the mayor of the city or town under the seal of the corporation.' According to the well-settled rule, that general and specific provisions, in apparent contradiction, whether in the same or different statutes, and without regard to priority of enactment, may subsist together, the specific qualifying and supplying exceptions to the general, this provision for the execution of a particular class of deeds is not controlled by the law of the territory requiring deeds generally to be executed with two witnesses. Pease v. Whitney, 5 Mass. 380; Nichols v. Bertram, 3 Pick. 342; State v. Perrysburg, 14 Ohio St. 472; London, etc., Ry. v. Wandsworth Board of Works, L. R. 8 C. P. 185; Bish. Writ. Laws, § 112a. The deed of the mayor to Townsend having been executed in conformity with the special act, was therefore valid and effectual to convey the legal title. The result of these views is that the appellant has failed to show herself entitled to the relief prayed in her bill. The decree of the supreme court of the territory of Utah affirming the decree of the district court, by which her bill was dismissed, must be affirmed.
107.US.629	Where a cause has been finally disposed of here, by the dismissal of the writ of error, this court has no power, at a subsequent term, to alter its judgment to one of affirmance, although, if there had been a judgment of affirmance, interest during the pendency of the writ would have been allowed on the amount of the judgment below, and in the judgment of dismissal no such interest was allowed.	These are all suits in each of which a judgment was rendered against a late collector of customs for the recovery of money paid as duties. There has been a certificate of probable cause in each. Writs of error to this court were brought by direction of the government in each case. When the cases were reached in order on the docket of this court at October term, 1881, the solicitor general, on the part of the government, moved that the writs of error be dismissed, as presenting no question which he desired to argue. This was done. There was no affirmance of the judgments below, and the judgments and mandates of this court contained no direction as to interest on the judgments below during the time the writs of error were pending. Those judgments were rendered in 1878, and suspended by the writs of error for over three years. In the Dodge case the mandate was issued, but has never been presented to the court below. In the other cases, the mandates were issued and presented to the court below, and orders for judgment were entered thereon. Counsel for the defendants in error in the Dodge case were present in this court when that case was so dismissed, but in the other cases no counsel for the defendants in error was present, and the motions to dismiss were made without their knowledge, and the mandates were not issued till after the close of the term. The defendants in error now apply to this court to correct the judgments and mandates in these cases so as to award to them interest as such or as damages for delay. There is no doubt that, if the defendants in error in these cases had in season asked for judgments of affirmance, their applications would have been granted, and interest would have been allowed, in accordance with the decision just announced in Cochran v. Schell, ante, 827. But the difficulty now is that we have no power to vary the judgments or the mandates after the close of the term, no especial right to do so in these cases having been reserved. It has always been held by this court that it has no power, after the term has passed, and a cause has been dismissed or otherwise finally disposed of here, to alter its judgment in such a particular as that now asked for, the change of a dismissal of a writ of error, with its legal consequences, to an affirmance of the judgment below, with its legal consequences, and not an error of mere form, or a clerical error, or a misprision of the clerk, or the like. Jackson v. Ashton, 10 Pet. 480; Bank U. S. v. Moss, 6 How. 31, 38. The applications are denied.
109.US.99	1. In his specification, A describes a process for placing hair'in small bundles and by a bailing press uniting several bundles into a bale of a convenient size for transportation: Held, That this description does not show a patentable invention. 2. The court will take judicial notice of matters of common knowledge, and 9f things in common use.	We are of opinion that the patent of complainant does not describe a patentable invention. The claim is for an article of manufacture, to-wit, a bale of plasterers' hair consisting of several bundles inclosed in bags, and compressed and secured to form a package. It is evident that the patent does not cover any improvement in the quality of the hair. Its qualities are unchanged. It does not cover the packing of the hair into parcels, or the size, shape, or weight of the parcels, nor the compression of the parcels separately. Nor does it cover the material of the bags which constitute the outer covering of the parcels. Complainant claims none of these things as secured by his patent. The packing of hair and other articles in parcels of the same shape, size, and weight, and the compression of the several parcels, has from time immemorial been in common use. Neither does complainant contend that his patent covers a single parcel or package of hair. All, therefore, that the patent can cover is simply an article of manufacture resulting from the compression and tying together in one bale of several similar parcels or packages of plasterers' hair. The object of this invention is thus set out in the specification: 'For the convenience of the trade'—that is to say, to enable the retail dealer more easily to parcel out the hair in quantities to suit his customers,—'I propose to form the hair in small bundles of one bushel each, and with several bundles into a bale of convenient size for transportation.' The invention and the object to be accomplished by it are thus seen to be contained within narrow limits. In deciding whether the patent covers an article, the making of which requires invention, we are not required to shut our eyes to matters of common knowledge, or things in common use. Brown v. Piper, 91 U. S. 43; Terhune v. Phillips, 99 U. S. 592; Ah Kow v. Nunan, 5 Sawy. 552. The subdivision and packing of articles of commerce into small parcels for convenience of handling and retail sale, and the packing of these small parcels into boxes or sacks, or tying them together in bundles for convenience of storage and transportation, is as common and well known as any fact connected with trade. This well-known practice is applied, for instance, to fine-cut chewing and fine-cut smoking tobacco, to ground coffee and spices, oatmeal, starch, farina, desiccated vegetables, and a great number of other articles. This practice having been common and long known, it follows that there is nothing left for the patent of complainant to cover but the compression of the bale formed of several smaller parcels. Can this be dignified by the name of invention? When the contents of the smaller parcels are such as to admit of compression into a smaller compass, the idea of compressing the bale of the smaller parcels for transportation and storage would occur to any mind. There is as little invention in compressing a bale of several parcels of hair tied up together, as in compressing one large parcel of the same commodity. But it is perfectly well known that the compression of several packages of the same thing into larger packages or bundles is not new, and that it has long been commonly practiced. Packages of wool, feathers, and plug tobacco have been so treated. The case of plug tobacco is a familiar instance. The plugs are formed so as to retain their identity and shape, the outer leaves of the plug forming at the same time a part of the plug as well as its covering. The plugs, after being so put up as to preserve their identity under pressure, are, as is well known, placed in a frame and subjected to pressure, and reduced to a smaller and compact mass, which is then boxed up and is ready for market. This is done in part for convenience in handling, transportation, and storage. When the box is opened by the retail dealer, the plugs can be taken out separately and sold. This method of treating plug tobacco would suggest to every one the compression into a bale of distinct packages of plasterers' hair, and leaves no field for invention in respect to the matter to which the patent of complainant relates. In view of the facts to which we have referred, which are of common observation and knowledge, we are of opinion that the article of manufacture described in the specification and claim of the complainant's patent does not embody invention, and that the patent is for that reason void. In support and illustration of our views, we refer to the following cases decided by this court: Hotchkiss v. Greenwood, 11 How. 248; Phillips v. Page, 24 How. 167; Brown v. Piper, 91 U. S. 37; Terhune v. Phillips, 99 U. S. 592; Atlantic Works v. Brady, 107 U. S. ——; [S. C. 2 SUP. CT. REP. 225;] Slawson v. Grand Street, etc., R. Co. 107 U. S. ——; [S. C. 2 SUP. CT. REP. 663.] The patent of complainant cannot be sustained by the authority of the case of Smith v. Goodyear Dental Vulcanite Co. 93 U. S. 486, where the court said: 'The invention is a product or manufacture made in a defined manner. It is not a product alone, separate from the process by which it is created.' In that case the invention was the product of a new process applied to old materials. In this case it is the product of an old process applied to old materials. Judgment affirmed.
108.US.281	When an indorsement is made upon a distiller's bond, "We hereby accept the within survey and consider the same as binding upon us on and after this date," which is signed by theobligees in the bond, the parties thereby waive the delivery of a copy of the survey, and the difference between the capacity of the still and the returns of production may be recovered in a suit on the bond.	This was an action on a distiller's bond, to recover the difference between tax assessed according to the producing capacity of the distillery and those calculated on the reports of production. The defense was that a copy of the official survey had not been served on the distillers. Section 3264 of the Revised Statutes provides for a survey of the distillery by the collector and a written report thereof in triplicate, 'of which one copy shall be delivered to the distiller, one copy shall be retained by the collector, and one copy shall be transmitted to the commissioner of internal revenue, and the survey shall take effect upon the delivery of such copy to the distiller.' In Peabody v. Stark, 16 Wall. 240, it was held, following the rulings of the commissioner of internal revenue, that the distiller was not liable for the capacity tax until a copy of the survey had been delivered to him. In the present case it appeared that no copy of the survey had ever been delivered to the distillers, but when the bond sued on was executed the distillers signed the following indorsement, written on the report of the survey which had been made: 'We hereby accept the within survey, and consider the same as binding upon us on and after this date, September 12, 1873. JOHN B. WRIGHT. THOMAS TUCKER.' The court below decided that this indorsement was in law a waiver of a delivery of a copy of the report to the distillers, and that the tax was consequently collectible. To this we agree. The language of the act is that 'the survey shall take effect upon the delivery of such copy to the distiller.' This is equivalent to saying that the survey shall be binding on the distiller when the copy is delivered to him. When, therefore, the distiller in this case accepted the survey and stipulated that it was binding on him, he in effect said that he would consider the survey as having effect without the formal delivery of a copy. This he might do. The judgment is affirmed.
108.US.158	1. When in the settlement of a controversy one of the plaintiffs and one of the defendants, necessary parties for the determination of the issues, are citizens of the same State, the cause cannot be removed from the State court under the first clause of section 2, of the act of March 3d, 1875, ch. 137, 18 Stat. 470. 2. In the present case the issue is not a separable controversy which, under the provisions of the second clause in that section, can be so removed.	This is an appeal from an order remanding a suit removed from a state court of Nevada. The facts are these: Isaac J. Lewis, a citizen of Nevada, the appellee, on the fifteenth of January, 1881, began the suit against Harris Lewis, a citizen of California, for the dissolution of an alleged partnership between them, and a settlement of the partnership affairs. To this suit he made Abraham Coleman, a creditor of the firm and a citizen of California, J. A. Wright, Hoffman Bros., Joseph Huber, Charles Sadler, A. & M. Sower, R. Hogan, J. D. Pringle, Charles Polkinghorn, B. C. Thomas, and James Brennan, citizens of Nevada, defendants, jointly with Harris Lewis. According to the averments in the bill, Harris Lewis, one of the partners, had become involved in business complications of his onw, and a large judgment had been taken against him in the district court of the United States for the district of California in favor of Herman Shainwald, assignee in bankruptcy of Schoenfield, Cohn & Co. A suit was begun on this judgment in the district court of the United States for the district of Nevada, and Ralph L. Shainwald was, by an ex parte order, without notice, appointed receiver of the estate of Harris Lewis in Nevada. The receiver at once took possession of the property of the partnership, whereupon a motion was made to vacate his appointment, which was granted. Notwithstanding this, Shainwald retained possession and was selling the interest of Harris Lewis in the property, and on such sales delivering the possession to the purchasers. All the defendants named, except Harris Lewis and Coleman, are either purchasers of the property, or in possession as the agents of the Shainwalds. On the filing of this bill a receiver of the property of the firm was appointed and qualified. All the defendants, except Harris Lewis and Coleman, answered the bill on the seventeenth of January, denying the existence of the partnership, and claiming that the property in dispute was the individual property of Harris Lewis. On the same day Herman Shainwald and Ralph L. Shainwald filed a petition of intervention, in which they asked to be admitted as defendants. In this petition they averred that Ralph L. Shainwald had been appointed receiver of the property of Harris Lewis by the district court for the district of California, and that he took possession under that appointment. It was also stated that, in the suit begun in the district court for the district of Nevada, an attachment was issued, under which the property was seized by B. C. Thomas, the sheriff, who was in possession under that authority. It also appeared that, in obedience to an order of the district judge in California, Harris Lewis had executed a formal assignment of all his property to the receiver appointed there. On the twenty-sixth of January, Ralph L. Shainwald was, by order of the court, admitted as a defendant in the suit, and the pleadings amended accordingly. Before this time a petition for the removal of the cause to the circuit court of the United States for the district of Nevada had been filed by Herman Shainwald and Ralph L. Shainwald, in which it is stated 'that the real parties in interest in this action are I. J. Lewis, of the county of Lander, state of Nevada, as plaintiff, and Ralph L. Shainwald, receiver;' that the defendant Pringle is the agent of Shainwald, the receiver, and in possession for him; that Ralph L. Shainwald and Herman Shainwald are citizens of California; that the defendants Wright, Coleman, Hoffman, Huber, Sadler, Sower, Hogan, Polkinghorn, Thomas, Pringle, and Brennan are nominal defendants, and have no interest in the suit; that the goods for which they were sued were sold to them by Ralph L. Shainwald, as receiver; and 'that the controversy in said action between said plaintiff and said B. C. Thomas, holding the possession of said property, by virtue of said attachment, in favor of said assignee, and the controversy in said action between said plaintiff and said J. D. Pringle, holding the possession of said property as agent of said receiver, Ralph L. Shainwald, and by virtue of his appointment as receiver, is wholly between citizens of different states, and which can be fully determined as between them, and that said Ralph L. Shainwald and said assignee, Herman Shainwald, are actually interested in said controversy.' Upon this petition the state court, after admitting Ralph L. Shainwald as a party to the suit, but not Herman Shainwald, ordered a removal, but the circuit court of the United States for the district of Nevada, when the record was filed there, remanded the cause. From an order to that effect this appeal was taken. We entertain no doubt of the propriety of the order remanding the suit brought, as it was, to close up the affairs of the partnership between Isaac J. Lewis and Harris Lewis. All the defendants, except Harris Lewis and Coleman, who have not answered, deny the existence of the partnership. Upon one side of that issue, as now made up, is Isaac J. Lewis, a citizen of Nevada, and on the other, Ralph L. Shainwald, a citizen of California, and all the other answering defendants citizens of Nevada. If Thomas, the sheriff, and Pringle, THE AGENT, ARE NOMINAL PARTIES, THE OTHEr defendants are not. if shainwald is a necessary party, so are they, because they are interested in the controversy in the same way, if not to the same extent, that he is. They get their title from him, and if he holds the property under the assignment from Harris Lewis, subject to the claims of Isaac J. Lewis as a partner, and the partnership creditors, so do they. It is of no importance that Shainwald has more in amount at stake than they. The title of all depends on defeating the claim of Isaac J. Lewis as a partner. To that extent their interests are identical with those of Shainwald. If there was no partnership, they all go free and each keeps the property he has got. If there was, the interests of these parties may become antagonistic. Besides, on the question of partnership, Harris Lewis, a citizen of California, is a necessary party. If he insists on the partnership, as he certainly may, then, in arranging the parties on that question, there will be citizens of Nevada and California on one side, and citizens of the same states on the other. Clearly, under these circumstances, the suit was not removable under the first clause of the second section of the act of March 3, 1875, c. 137. Neither was there any separable controversy in the suit such as would entitle any of the parties to a removal under the second clause. As has already been said, the suit was brought to close up the affairs of an alleged partnership. The main dispute is about the existence of the partnership. All the other questions in the case are dependent on that. If the partnership is established, the rights of the defendants are to be settled in one way; if not, in another. There is no controversy in the case now which can be separated from that about the partnership, and fully determined by itself. The order remanding the suit is affirmed.
109.US.627	The removal of a treasurer of a township in the State of Kansas from the limits of the township into the limits of an adjoining township, without resigning his office, does not vacate the office so as to invalidate service of summons upon him in his oficial capacity for the purpose of commencing an action against the township.	In this case the judges holding the circuit court have certified a difference of opinion between them upon the hearing of a motion to set aside the service of summons on the plaintiff in error, being the defendant below. The return of service is in these words: 'Received the within writ, September the 12th, 1882. I served the within summons on said township of Salamanca, Cherokee county, state of Kansas, by delivering a true and certified copy thereof to Joseph A. Jones, the last elected and qualified treasurer of said Salamanca township, in the county of Cherokee, state and district of Kansas; and I made diligent search and inquiry for, but could not find, in the township of Salamanca, or county of Cherokee, state and district of Kansas, the last elected and qualified trustee or clerk of said within defendant, township of Salamanca. 'All done this eighteenth day of September, A. B. 1882. 'B. F. SIMPSON, 'U. S. M., Dist. of Kansas. 'By J. H. SMITH, Deputy.' The controlling question certified is as follows: '(2) Whether service of said summons upon Joseph A. Jones, the last elected and qualified treasurer of said township, after said Jones had removed out of said township and across the line into the adjoining township of Crawford, in said county of Cherokee, was good and sufficient service of said summons.' It is not denied that the service was good if Jones was, in law, the treasurer of the township when served. By the constitution of Kansas, art. 9, § 4, township officers, except justices of the peace, hold their offices one year from the Monday next succeeding their election, and until their successors are qualified. Jones was therefore presumptively in office when served, unless his removal across the line into Crawford township of itself created a vacancy. Borton v. Buck, 8 Kan. 302; Rheinhart v. State, 14 Kan. 318; Hubbard v. Crawford, 19 Kan. 570. There is nothing in the constitution or laws of Kansas which requires a township treasurer to be a resident of or voter in the township when elected or qualified; neither is there anything which vacates the office if the officer removes from the township during the term for which he was elected. Justices of the peace are township officers, and as to them it is expressly provided that they 'shall reside and hold their office in the township for which they shall have been elected.' Section 4, (5970,) Dass. Comp. Laws, (1879,) 978. As no similar provision is made in respect to any other township officer, the implication necessarily is that actual residence in the township is not required of them. Expressio unius est exclusio alterius. That residence, as a qualification for office, was in the minds of the framers of the constitution and of the legislature is apparent, for article 3, § 11, of the constitution, provides that all judicial officers 'shall reside in their respective townships, counties, and districts during their respective terms of office;' article 2, § 4, that 'no person shall be a member of the legislature who is not at the time of his election a qualified voter of and resident in the county or district for which he is elected;' and section 218 (1643) of the General Statutes, (Dass. Comp. Laws, 311,) that 'ceasing to be an inhabitant of the county for which he was elected or appointed' vacates the office of a county officer. Undoubtedly the removal of a township treasurer from a township may, under some circumstances, vacate his office and authorize the county commissioners to fill the place,—section 12, (1978,) Dass. Comp. Laws, 978;—but we think it does not necessarily vacate the office under all circumstances. In the present case the question is whether moving 'across the line' into an adjoining township of itself has that effect. In our opinion it does not, and consequently we answer the second question certified in the affirmative. The motion to set aside the service was therefore properly overruled, and the judgment is affirmed.
108.US.342	Where a vessel, before she breaks ground for a voyage, is so injured by fire that the cost of her repairs would exceed her value when repaired, and she is rendered unseaworthy and incapable of earning freight, a contract of affreightment for the carriage of cotton by her to a foreign port, evidenced by a bill of lading, containing the usual and customary exceptions, and providing for the payment of the freight money on the delivery of the cotton at that port, is thereby dissolved, so that the shipper is not liable for any part of the freight money, nor for any of the expenses paid by the vessel for compressing and stowing the cotton.	This is a libel in admiralty against the cargo of the ship Tornado, brought by the master and owners of that vessel, to recover freight money. The district court and, on appeal, the circuit court, dismissed the libel. The libelants have appealed to this court. The material facts found by the circuit court are these: On the twenty-fourth of February, 1878, the ship, while moored at the wharf in New Orleans, and bound on a voyage to Liverpool, England, and before she had broken ground for said voyage, was discovered to be on fire in her hold. Her master had given bills of lading for the transportation from New Orleans to Liverpool, with the exceptions usual in bills of lading, of 5,195 bales of cotton, of which 5,008 had been put on board, 164 were on the levee, and 23 had not reached the levee. Water was pumped into the ship to extinguish the fire, and on the 26th, near 6 o'clock P. M., being filled with water, she sank to the bottom of the river along-side of the wharf, a part of her bulwarks remaining above water. While so resting upon the bottom of the river, the ship, cargo, and freight were, on the 27th, libeled in the district court, for salvage, by the New Harbor Protection Company, and about 2 o'clock P. M. of that day the marshal, by virtue of a warrant of seizure issued by said court on said lible, took possession of the ship and cargo. On the 28th, about noon, the ship was pumped out and raised along-side of the wharf, and the discharge of the cargo on board was commenced, all of it being damaged by water, and some of it by fire, 336 bales having been removed by the salvors in an undamaged condition before the ship sank, but after the fire was discovered; but salvage was claimed and allowed on the entire cargo. On the same day, the proctor for the salvors filed in the district court a motion in writing, suggesting that the whole cargo then being discharged from the ship was greatly damaged by water, and some of it by fire and water, and would in all probability have ultimately to be sold, being in an unfit condition to be sent to its destination; and an order of the court was thereupon made directing a sale of the cargo by the marshal upon the levee as it came out of the ship, on two days' advertisement, in such lots as might accumulate from day to day. On the same day an application was made to the court by the master of the ship, in which he represented that he was desirous and entitled to bond the ship and cargo, and asked for a rule upon the libelant to show cause on the next day, March 1st, why the order to sell the cargo should not be rescinded, and the master be allowed to bond the cargo. On March 1st the rule came on for hearing. The proctor for the salvors, and counsel representing the insurers of the cargo, appeared and resisted the rescinding of the order of sale, and counsel appeared for the master, who filed a formal claim to the ship and cargo. On the trial of the rule witnesses were examined orally before the judge, among them various representatives of the underwriters on the cargo, who were called as witnesses by the proctor for the salvors, and who testified that if their interest were to be consulted they preferred that the cotton should be sold by the marshal as it came out of the ship, and that the master should not be permitted to bond the cotton. The counsel for the insurers of the cargo then asked leave to be heard on their behalf. To this the counsel for the master and claimant objected, and insisted that counsel for the underwriters on the cargo could not be heard until after the proof of abandonment to them by the owners of the cargo and acceptance of the abandonment. Thereupon, Mr. Palfrey, president of the Factors' & Traders' Insurance Company of New Orleans, which was one of the companies represented by said counsel, and one of the witnesses who had been called to the stand as above stated, was recalled by said counsel, and testified that so far as his company was concerned the loss on the cargo had been paid or ordered to be paid, and said company had become the owner of the cotton insured by it, and abandonment thereof had been made and accepted by his company. After this, said counsel was allowed to and did make an oral argument in behalf of the underwriters, in opposition to the motion to rescind the order to sell, which had been obtained by the salvors, but no pleadings were filed in behalf of the underwriters. Upon the trial of the rule evidence was also taken, by order of the court, in relation to the condition of the cargo, and whether the same was or was not a total loss. On March 5th, and before the district court had made any decision or order on the rule to rescind the order for the sale of the cotton, a proctor representing underwriters at Lloyds, by leave of the court, filed an intervention for the interest of the insurers of the freight on the cargo, in which it was prayed that the order for the sale of the cargo be rescinded. This intervention was supported by affidavits filed by the intervenors and by a brief of the proctor. Afterwards, on March 6th, after consideration of the rule taken by the master of the ship to rescind the order of sale, and of the evidence and arguments thereon, and of the last-named intervention, and of the affidavits and brief submitted therewith, the court ordered that the master be allowed to bond the ship and such of the cotton then stored in the levee steam cotton-press as was in good order, amounting to 523 bales, and that the remainder of the cargo on board the ship or upon the levee, which was more or less damaged, be sold by the marshal after three days' notice, and all questions of freight were reserved by the court, and the court appointed a trinity master to advise and assist in making sale of the cotton. On the nineteenth of March the underwriters filed their claim, claiming all of the cargo, and procured an order from the judge of the district court to be entered on their claim, suspending the right given to the master on the sixth of March, to bond such of the cotton as was stored in the levee cotton-press, to-wit, about 500 bales, until the further order of the court. On March 26th, the master not having bonded the cotton a rule was taken and duly served on him to show cause why the order of March 6th, so far as it allowed him to bond a portion of the cotton, should not be rescinded, and the movers of the rule, the insurers of the cargo, be allowed to bond the same. The rule was heard on March 27th, the movers of the rule and the master being represented by their respective counsel, and was by the court made absolute, without opposition, and the order allowing the master to bond said portion of the cargo was rescinded, and the movers of the rule were allowed to bond the same. On the thirtieth of March the present libel was filed. The unsold cargo and the proceeds of that which had been sold were then in the custody of the marshal, in the suit for salvage. The libel recites the proceedings above mentioned, and alleges that the cotton might have been picked, dried, and rebaled, and sent to its destination, and freight have been earned thereon, but that the application of the master to bond the cargo was refused, owing to the opposition of the libelant for salvage, and especially to the opposition of the underwriters on the cargo; and that, under the contract of carriage, it was the right as well as the duty and the desire of the libelants to pick, dry, and rebale so much of the cotton as might require it, and which could easily have been done, and to carry it to its destination and earn the freight money for carrying it, which they had been unable to do because they had been denied the right to bond it, owing to the opposition of the libelant for salvage and of the underwriters on the cargo, resulting in the taking away of the cargo entirely from the master; in consequence of which the entire freight money agreed on became due, as well as money paid by the libelants for compressing and stowing the cargo in the vessel, and other expenses incident thereto, and for railroad charges; for all of which the libel claims a lien on the cargo and on the proceeds of sale. The circuit court found the following further facts: The libelants paid for compressing the cargo before it was put on board, and for stowing it on board, and other expenses incident thereto, $14,278.26. The gross freight on the cargo, had it been delivered at its destination in Liverpool, as required by the bills of lading, would have been £4,169 13s. 1d. Of the cotton, 523 bales were in an undamaged and sound condition, being the 23, the 164, and the 336 before mentioned. In consequence of the fire, and as a result thereof, the ship was so badly damaged that the cost of her repairs would exceed her value when repaired, and she was unseaworthy and incapable of carrying freight. The 523 bales were bonded by the underwriters, and were appraised at the sum of $19,100. The gross proceeds of the sale of the damaged cotton amounted to $116,000. The purchaser at the marshal's sale shipped to northern states, in the condition in which it came from the ship, 1,185 bales of the damaged cotton; and 2,896 bales more were picked, dried, rebaled, and shipped, part to Liverpool and the rest to Philadelphia. All the damaged cotton taken from the ship was unmerchantable cotton, even after it had been picked, dried, and rebaled; that is, it could not be used for making cotton cloth, but could only be used for making felt hats, paper, wadding, and such like articles, having lost, by the submersion and drying, a large part of its natural oil, its fiber being injured and its weight reduced. On the facts so found the circuit court held that the libelants had no lien on the cargo or its proceeds for freight, or for money paid by them for compressing and stowing the cargo, and dismissed the libel. The libelants seek to apply to the present case the principle applied where a voyage partly performed is interrupted by a disaster to the ship, namely, that the ship-owner has a lien on the cargo for the earning of the freight, and so has a right to carry the cargo forward by his vessel or some other conveyance, and deliver it and receive his full freight. As in the case of a disaster to the ship in the course of a voyage the whole freight is payable if, by the fault of the owner of the cargo, the master is prevented from forwarding the cargo from an intermediate port to its destination, it is contended in the present case that the libelants have a right to recover the whole agreed freight, because they had a right to send the cargo to Liverpool and earn full freight, and were prevented from doing so by the action of the underwriters, who became, by abandonment, the owners of the cargo. It is also contended that the owners had a right to repair the ship, even though the cost of repairing would exceed her value when repaired. The law in regard to the respective rights and liabilities of shipper and ship-owner, where cargo has been carried for a part of a voyage, is nowhere better expressed than by Lord ELLENBOROUGH in Hunter v. Prinsep, 10 East, 378, 394: 'The ship-owners undertake that they will carry the goods to the place of destination, unless prevented by the dangers of the seas, or other unavoidable casualties; and the freighter undertakes that if the goods be delivered at the place of their destination he will pay the stipulated freight; but it was only in that event, viz., of their delivery at the place of destination, that he, the freighter, engages to pay anything. If the ship be disabled from completing her voyage, the ship-owner may still entitle himself to the whole freight by forwarding the goods by some other means to the place of destination; but he has no right to any freight if they be not so forwarded, unless the forwarding them be dispensed with, or unless there be some new bargain upon this subject. If the ship-owner will not forward them, the freighter is entitled to them without paying anything. One party, therefore, if he forward them, or be prevented or discharged from so doing, is entitled to his whole freight; and the other, if there be a refusal to forward them, is entitled to have them without paying any freight at all. The general property in the goods is in the freighter; the ship-owner has no right to withhold the possession from him, unless he has either earned his freight or is going on to earn it. If no freight be earned and he decline proceeding to earn any, the freighter has a right to the possession.' These remarks were made in regard to a voyage partly performed, and interrupted by a disaster, where freight money was claimed pro rata itineris peracti. But no case can be found in which freight money has been allowed, where the voyage was not commenced, and the ship was, by a disaster for which the shipper was not at all responsible, put into the situation of the vessel in this case after the contract of carriage was made. In the present case the ship was rendered unseaworthy by the fire, and incapable of earning freight, and was so badly damaged that the cost of her repairs would exceed her value when repaired. There is no suggestion in the findings that there was any intention of repairing her, and on the facts found it must be presumed she would not have been repaired. All that could have been done, if the cargo had been bonded by the master or ship-owners, in regard to sending it forward, would have been to send it by another vessel. But, although the order of March 6th allowed the master to bond the 523 undamaged bales, and there was no suspension of that order until the nineteenth of March, they were not bonded. We are of opinion that by the disaster which occurred before the ship had broken ground or commenced to earn freight, the circumstances with reference to which the contract of affreightment was entered into were so altered by the supervening of occurrences which it cannot be intended were within the contemplation of the parties in entering into the contract, that the shipper and the underwriters were absolved from all liability under the contract of affreightment. The contract had reference to a particular ship, to be in existence as a seaworthy vessel and capable of carrying cargo and earning freight and of entering on the voyage. All the fundamental conditions forming part of the contract of the ship-owner were wanting at the time when the earning of freight could commence. In addition, as the result of the fire, and by no fault of the shipper, all but 523 bales of the cotton was rendered unmerchantable, and put into such a condition that its owner might well hesitate to incur the expense of sending it to Liverpool. As to the undamaged cotton, the master had an opportunity for 13 days to bond it, and failed to do so. The money paid by the ship-owners for compressing and stowing the cotton, and for other expenses incident thereto, must be understood as having been included in the freight money, and to be reimbursed out of that, and to be money for which, in any event, the shipper of the cotton would not have been liable in addition to the freight money. If the ship-owner was not entitled to the latter he was not entitled to anything. He took, as to the expenses, the risk of losing them if he lost the freight money. So, the two are bound up together. It is an inherent element in a contract of affreightment under a bill of lading, that the vessel shall enter on the voyage named, and begin the carriage of the goods shipped, or, as it is technically called, break ground, before a claim to freight money can arise, unless the shipper of the goods, the vessel remaining ready to enter on the voyage, undertakes to reclaim the goods. In the latter case the circumstances under which the contract was entered into continuing substantially the same so far as respects the vessel, the shipper cannot reclaim the goods without paying at least full freight. But, subject to this qualification, it is a principle of the maritime law that if a ship does not begin her voyage at all, does not break ground, no freight can be payable. This was laid down and applied in the early case of Curling v. Long, 1 Bos. & P. 634. That case has never been overruled, and no case holding to the contrary is cited or has been found. It is a case directly in point in two particulars, and it will be useful, therefore, briefly to examine it. Some hogsheads of sugar were shipped, under bills of lading, on a vessel while lying in a port in Jamaica, bound for London. Before the vessel sailed she was cut out by privateers and carried to sea, but was recaptured and taken into another port. Under a libel for salvage in the admiralty court of Jamaica, the cargo was sold by order of the court, and the net proceeds were remitted to the defendants for the owners of the cargo. The ship-owners had expended money in lading the cargo, according to the usage of the Jamaica trade. They sued the defendants to recover the freight money or the expenses. It was held that they could not recover anything; that the inception of freight was breaking ground, and that the expenses incurred were to be reimbursed in the freight money or not at all. The case of Jones v. Holm, L. R. 2 Exch. 335, was a different case. By a charter-party, a vessel was to go to a specified port and take a specified cargo and deliver it at Liverpool for a specified freight. She went to the port and was partly laden, when she was so damaged by fire that she was scuttled. The cargo was injured and sold, except a small part, not on board, which was forwarded to Liverpool by the master. The vessel was repaired and tendered to take the remainder of the cargo. The charterer refused to supply more cargo, and the vessel obtained a cargo carried it to England at a less freight than she would have earned for a full freight under the charter-party. In a suit to recover damages for a breach of the charter-party, it was held that the charterer was bound to complete the lading of the vessel. The authority of the case of Curling v. Long is recognized in Bailey v. Damon, 3 Gray, 94; Burgess v. Gun, 3 Har. & J. 225; Clemson v. Davidson, 5 Bin. 392; and in various text-books. 3 Kent's Comm. 223; 1 Parsons, Shipp. & Adm. 220; Abb; Shipp. (11th Lond. Ed.) 407; Maclachlan, Shipp. (2d Ed.) 458; Smith, Merc. Law, (3d. Am. Ed.) 400. On principle this case falls within the rule that where the stipulations of a contract are interdependent, a defendant cannot be sued for the non-performance of stipulations on his part which were dependent on conditions which the plaintiff has not performed. The ship-owner was entitled to freight only for carrying the cargo and delivering it at Liverpool, with the implied covenant that this particular vessel was to take it on board and enter on the voyage. Before that event occurred this vessel was substantially put out of existence by no fault of the shipper, and he had and could have no benefit from the contract. He had a right, therefore, to treat the contract as rescinded, so far as any liability for freight was concerned. In Taylor v. Coldwell, 3 Best & S. 826, it is laid down as a rule that 'in contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance.' The reason given for the rule is that without 'any express stipulation that the destruction of the person or thing shall excuse the performance,' 'that excuse is by law implied, because from the nature of the contract it is apparent that the parties contracted on the basis of the continued existence of the particular person or chattel.' The rule was there applied to excuse the owner of a music hall which had been burned from fulfilling a contract to let the use of it. The principle was extended further in Appleby v. Myers, L. R. 2 C. P. 651. There the plaintiffs contracted to erect certain machinery on the defendant's premises at specific prices for particular portions, and to keep it in repair for two years, the price to be paid upon completion of the whole. After some portions of the work had been finished, and others were in the course of completion, the premises, with all the machinery and materials thereon, were destroyed by an accidental fire. It was held that both parties were excused from the further performance of the contract, and that the plaintiffs were not entitled to sue in respect to those portions of work which had been completed, whether the materials used had become the property of the defendant or not. See Benj. Sales, (3d Amer. Ed.) § 570; Wells v. Calnan, 107 Mass. 514, and cases there cited. These principles are so well established that it is only necessary to refer to one case in this court, (Jones v. U. S. 96 U. S. 24,) which recognizes them, in which it is said: 'Where an act is to be performed by the plaintiff before the accruing of the defendant's liability under his contract, the plaintiff must prove either his performance of such condition precedent, or an offer to perform it which the defendant rejected, or his readiness to fulfill the condition until the defendant discharged him from so doing, or prevented the execution of the matter which the contract required him to perform. * * * A contract may be so framed that the promises upon one side may be dependent on the promises upon the other, so that no action can be maintained, founded on the written contract, without showing that the plaintiff has performed, or at least has been ready, if allowed by the other party, to perform his own stipulations, which are a condition precedent to his right of action.' On a full consideration of the case, we are of opinion that the decree of the circuit court must be affirmed.
108.US.305	The libellant in a suit in rem, in admiralty, against a vessel, for damages growing out of a collision, claimed in his libel, to recover$27,000 damages. vor. cvm-20 After the attachment of the vessel in the district court, a stipulation in the sum of $2,100, as her appraised value, was given. The libel having been dismissed by the circuit court, on appeal, the libellant appealed to this court: Held, that the matter in dispute did not exceed the sum or value of $5,000, exclusive of costs, as required by § 3 of the act of February 16th, 1875, 18 Stat. 316, and that this court had no jurisdiction of the appeal. A decree against the vessel for $27,000 would not establish the liability of the claimant to respond for that amount in personam, unless he was the owner of the vessel at the time of the collision, and that fact must appear by the record, in order to be so far a foundation for such liability as to authorize this court to consider the $27,000 as the value of the matter in dispute on said appeal.	This is a suit in rem, in admiralty, to recover damages for a collision, brought in the district court, where the libel was dismissed. The decree was affirmed by the circuit court, on appeal, and the libelant has appealed to this court. The amount of damages claimed in the libel is $27,000. The collision occurred on the second of November, 1875. The libel was filed on the fifth day of the same month, and the vessel was attached, under process, on the same day. On the 9th, Richard H. Seward, describing himself self as master of the schooner sued, filed a claim to her, in which he stated that he intervened, as agent of the owners of the schooner, 'for the interest of Daniel Marcy, William H. Sise, and others, owners of said schooner,' in her, and made claim to her, and averred that he was in possession of her when she was attached, and that 'the persons above named and others are the true and bona fide owners' of her, and that no other person 'is' her owner. The master signed the claim as 'agent,' and made oath to it 'that the owners of said schooner reside in Portsmouth, New Hampshire, and Kittery, Maine, and that this deponent is duly authorized to put in this this claim in behalf of the owners of the said schooner,' etc. On the twelfth of November, the value of the schooner was fixed by appraisement at the sum of $2,100, and a stipulation for value in that amount was entered into pursuant to the rules and practice of the district court, signed 'W. H. Sise & Co., by R. H. Seward,' and also signed by two sureties, not claimants. A stipulation for costs, entered into on behalf of the claimants, on November 9th, pursuant to the rules and practice of the district court, recites that a claim had been filed in the cause 'by Daniel Marcy, William H. Sise, and others, owners of said vessel,' etc. The answer, which was sworn to December 18, 1875, purports to be the answer of 17 persons, (two of whom are Daniel Marcy and William H. Sise,) whom it states to be 'claimants of the schooner' and 'respondents,' and the answer speaks of the vessel as the 'respondents' schooner.' The oath to the answer is made by a person who swears that he is 'agent for the schooner,' 'and transacts business for her owners,' and 'that the owners are not, nor is either of them, or the master thereof, within this district.' The appellees moved to dismiss the appeal for want of jurisdiction in this court to entertain it, on the ground that the matter in dispute does not exceed the sum or value of $5,000, exclusive of costs, as required by section 3 of the act of February 16, 1875, (18 St. at Large, c. 77, p. 316.) We have held, at this term, on a full review of the subject, in Hilton v. Dickinson, [ante, 424,] that while 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, the actual matter in dispute in this court, as shown by the record, and not alone the damages alleged or prayed for in the declaration, must be looked to in determining the question of jurisdiction. We have also held, in Town of Elgin v. Marshall, 106 U. S. 578, [S. C. 1 SUP.CT. REP. 484,] that the required valuation is limited to the matter in dispute in the particular suit in which the jurisdiction is invoked; that any estimate of value as to any matter not actually the subject of that suit must be excluded; and that there cannot be added to the value of the matter determined in that suit any estimate in money, by reason of the probative force of the judgment itself in some subsequent proceeding. As is remarked in the latter case: 'The value of the judgment, as an estoppel, depends upon whether it could be used in evidence in a subsequent action between the same parties.' In the present case, although the libelant may recover $27,000 against the vessel, because he demands that amount against her, it is plain that he cannot recover, on the stipulation for value, which represents her, more than $2,100, and cannot recover against the sureties in the stipulation more than that amount. Therefore, this being a suit in rem only, the value of the vessel, represented by the stipulation, is all that is in dispute, because that is all the libelant can obtain, or the stipulators can lose, in this suit. The libelant contends, however, that a decree for him for $27,000 against the vessel would establish the liability of the claimants for that amount. But it could not be contended that this would be so in any case but one where the claimants were alleged and shown to have been the owners of the vessel sued, at the time of the collision. In the case of The Enterprise, 2 Curt. 317, the record showed that the claimant of the vessel was an owner of her during the voyage for which the wages sued for were claimed, and that by his answer he contested in that character the right to wages. For these reasons it was held that the decree in the suit in rem bound him personally, as res adjudicata; that a libel in personam against him would lie to execute that decree; and that the matter in dispute in that case was not the vessel or the existence of a lien on her. The proceeds of the sale of the vessel were $13.90, the decree was for more then $50, and $50 was the amount necessary for jurisdiction on an appeal. Under these circumstances an appeal was allowed. There is no allegation in the libel in this case, as to who were the owners of the vessel at the time of the collision, and nothing is set forth therein as a foundation for any ultimate recovery against any particular persons, as such owners, of so much of the $27,000 claimed as may exceed the appraised value of the vessel. Rule 15, in admiralty, provides that 'in all suits for damage by collision, the libelant may proceed against the ship and master, or against the ship alone, or against the master or the owner alone, in personam.' This rule, as is well settled, excludes the joining in one suit of the vessel and her owners; but it does not prevent the introduction into the libel of allegations as to the ownership of the vessel at the time of the collision, with a view to a proceeding to obtain such ultimate relief in personam, on the basis of a recovery in rem, as the libelant may be entitled to. Nor is there in the record in this case anything which can be held to establish, as against the claimants of the vessel, though they were her owners when the claim was filed, that they were her owners at the time of the collision, and so in a position to be liable to respond in personam for the damages suffered by the libelant, in a proper proceeding in personam. If the libelant had recovered more than $5,000 in this case, in the circuit court, against the vessel, the claimants could not have appealed to this court, because, for the reasons above set forth, the amount in dispute would have been only $2,100, on the record as it stands. As we held in Hilton v. Dickinson, ubi supra, the statute does not give to the plaintiff an advantage over the defendant, under the same circumstances. The appeal is dismissed for want of jurisdiction.
107.US.265	A rule was made by the Circuit Court of the United States for the Southern District of Florida, which, after reciting that it had come to tile knowledge of the court that W., an attorney of the court, did, on a day specified, engage in and with an unlawful, tumultuous, and riotous gathering, lie advising and encouraging thereto, take from the jail of Hillsborough County, and hang by the neck until he was dead, one John, otherwise unknown, thereby showing such an utter disregard and contempt for the law which, as a sworn attorney, he was bound to support, as shows him to be totally unfitted to occupy such position: thereupon cited him to appear at a certain time and show cause why his name should not be stricken from the roll. The attorney appeared, and answered, denying the charge in mass, and excepting to the jurisdiction of the court, (1) because there was no charge against him under oath, (2) because the offence charged was a crime by the laws of Florida for which lie was liable to be indicted and convicted. The court overruled the exceptions, and called a witness who proved the charge, showing that the hanging took place before the court-house door, during a temporary recess of the court; thereupon the court made an order striking W.'s name from the roll. On motion made here for a mandamus to compel the judge of that court to reverse this order, and he having answered the rule, showing the special circumstances of the case,-Held,1 . That although not strictly regular to grant a rule to show cause why an attorney should not be struck off the roll, without an affidavit making charges against him, yet that, under the special circumstances of this case, the want of such affidavit did not render the proceeding void as coram non judice. 2. That the acts charged against the attorney constituted sufficient ground for striking his name from the roll. 3. That although, in ordinary cases, where an attorney commits an indictable offence, not in his character of attorney, and does not admit the charge, the courts will not strike his name from the roll until he has been regularly indicted and convicted, yet that the rule is not an inflexible one; that there may be cases in which it is proper for the court to proceed without such previous conviction; and that the present case, in view of its special circumstances, the evasive denial of the charge, the clearness of the proof, and the failure to offer any counter proof, was one in which the court might lawfully exercise its summary powers. 4. That the proceeding to strike an attorney from the roll is one within the proper jurisdiction of the court of which he is an attorney, and does not violate the constitutional provision which requires an indictment and trial by jury in criminal cases; that it is not a criminal proceeding, and not intended for punishment, but to protect the court from the official ministration of persons unfit to practise as attorneys therein. 5. That such a proceeding is not an invasion of the constitutional provision that no person shall be deprived of life, liberty, or property without due process of law; but that the proceeding itself, when instituted in proper cases, is due process of law. 6. That, as the court below did not exceed its powers in taking cognizance of the case, no such irregularity occurred in the proceeding as to require this court to interpose by the writ of mandamus. The case is fully stated in the opinion of the court. Mr. Charles T. Jones for the petitioner.	"(Circuit Court of the United States, Southern District of Florida. March Term, 1882.) "Whereas, it has come to the knowledge of this court that one J. B. Wall, an attorney of this court, did, on the sixth day of this present month, engage in and with an unlawful, tumultuous, and riotous gathering, he advising and encouraging thereto, take from the jail of Hillsborough county, and hang by the neck until he was dead, one John, otherwise unknown, thereby showing such an utter disregard and contempt for the law and its provisions, which, as a sworn attorney, he was bound to respect and support, as shows him to be totally unfitted to occupy such position: "It is hereby ordered that said J. B. Wall be cited to appear and show cause by 11 o'clock, Wednesday, the eighth instant, why his name should not be stricken from the roll of attorneys, and he be disbarred and prohibited from practicing herein. [Signed] 'JAMES W. LOCKE, District Judge. 'Tampa, Florida, March 7, 1882.' Wall appeared in court at the return of this rule, and, on the following day, filed a written answer, as follows: 'This respondent, now and at all times hereafter saving and reserving to himself all and all manner of benefits of exception to the many errors, uncertainties, and imperfections in the said rule contained, prays leave to object, as if he had demurred thereto, to the right, authority, or jurisdiction of this court to issue said rule and require him to answer it: '(1) Because said rule does not show that the matters therein charged took place in the presence of the court, or were brought to the knowledge of the court by petition or complaint in writing under oath; and, '(2) Because respondent is charged in said rule with a high crime against the laws of Florida not cognizable in this court, and for which, if proven, this respondent is liable to indictment and prosecution before the State court; but for answer to so much of said rule as this respondent is advised that it is material or proper for him to make answer to, answering, saith—— 'He denies counselling, advising, encouraging, or assisting an unlawful, tumultuous, and riotous gathering or mob in taking one John from the jail of Hillsborough County, and causing his death by hanging, in contempt and defiance of the law, or that he has been guilty of any unprofessional or immoral conduct which shows him to be unfitted for the position of an attorney and proctor of this court, as he is charged in the said rule. 'Whereupon he prays to be hence dismissed, etc. [Signed] 'J. B. WALL.' The court overruled the exceptions to its jurisdiction, and called to the stand Peter A. Williams, the marshal of the district, whose testimony, at the request of the respondent, was reduced to writing, and was as follows: 'Peter A. Williams, being duly sworn to testify, says: 'I saw Mr. J. B. Wall and others come to Mr. Craft's house about 2 o'clock March 6th, and having already heard that a sheriff's posse had been summoned to protect the jail, I though by the orderly manner they came in that it was the sheriff's posse coming for instructions. I was sitting on the end of the piazza, and did not go in the house, but sat there till they came out, thinking they had come for instructions. 'When they came out I heard one of the party remark, 'We have got all out of you we want.' Mr. Wall was one of the party. 'I then thought something was wrong; they all went out of the gate, and Mr. Craft after them, and I followed after them rather slowly, and when I got to the corner I saw the party coming out of the jail with the criminal, the man who was afterwards hanged. They carried him over the steps to the oak tree in front of the steps to the court-house. The crowd gathered around him, and some one threw the man down. I saw him then put on a dray, and afterwards pulled up on the tree. There was a crowd of about a hundred persons there. I don't think I could name any man in that crowd except the sheriff, who was there protesting, as I had come away from the crowd and was on the upper piazza of the court-house. I heard the man hollowing. He was put on a dray with a rope around his neck. The dray went off and he fell to the ground about 10 feet from a perpendicular; then the crowd pulled the rope and he went up. The crowd had their backs towards me. I suppose I could have indentified some one if I had thought to, but I was excited, and did not notice who they were. I saw Mr. Wall coming from the jail with the prisoner until they crossed the fence; then I did not see him any more until after it was over. I did not see him leave the crowd, though he might have done it without my seeing it. When going from the jail to the tree Mr. Wall, I think, had hold of the prisoner; he was beside him. 'I did not see him afterwards until the hanging was over, then the crowd had increased, perhaps, to 200 persons, and I went down to them to the plank-walk. 'This was Monday of this week, the sixth of this month, I think, in Tampa, Hillsborough County. 'I also saw Mr. Sparkham, the mayor of the city, protesting at the time of the hanging.' 'When the man fell from the dray he fell his full length to the ground; the rope was slack.' On the next day the court, after argument by respondent's counsel, made an order in the case, 'That J. B. Wall be prohibited from practicing at the bar of this court until a further order herein.' The answer of Judge LOCKE to the rule granted by this court to show cause why a mandamus should not issue, states: 'That during a session of the Circuit and District Courts of the United States at Tampa, in said Southern District of Florida, he, the said James W. LOCKE, presiding, on the sixth day of March, A. D. 1882, at the adjournment of said courts for dinner, at about 1 o'clock of said day, as he was passing from the court-house, a prisoner was being brought to the jail in the same yard by two officers; that upon his return to the court-house after dinner, in a little more than an hour, the dead body of the same prisoner hung from the limb of a tree directly in front of the court-house door; whereby he became personally informed of the commission of a most serious offence against the laws. The same afternoon he was informed of the active participation in said crime of one J. B. Wall, an attorney of said court, by an eye-witness in whom the most implicit confidence could be placed, but who declined to make any charge or affidavit of such fact on account of a fear of said Wall's influence and the local feeling it would cause against him, the said witness. 'That not only from the direct statements of eye-witnesses, but from numerous other sources, reliable information of like import was received; whereupon said J. B. Wall, your petitioner, was, on the said seventh day of March, during a session of the Circuit Court of the United States, in open court, charged in writing by the respondent herein, as judge, with having, with an unlawful, tumultuous, and riotous gathering, he advising and encouraging thereto, taken from the jail of Hillsborough County, and hanged to a tree by the neck until he was dead, a man to the court known only as John; and cited by rule served upon him to show cause by 11 o'clock A.M. of the next day, the eighth day of said March, why his name should not be stricken from the roll of attorneys and he prohibited from practicing in the United States courts of said district. 'That at said time of return, said J. B. Wall appeared in person, and by counsel, and moved that whereas said rule had charged him with a criminal offence, indictable by the grand jury of the courts of the state, the matter be continued until after the meeting of such grand jury; and the matter was held under advisement by the court and continued until next day. 'That at the opening of the court the next day, before any order had been made upon the pending motion, came said J. B. Wall, and withdrew said motion for continuance, and filed answer demurring to the right of the court to issue the rule served upon him, because [stating the contents of Wall's answer,] and demanded that proof be had of the matter charged. 'That thereupon Peter A. Williams, Esq., United States marshal for said district, being duly sworn, testified as follows: [Stating the testimony of Williams, as before given.] 'Whereupon J. B. Wall, being himself present and stating that he had no testimony to offer, and desiring to be heard by counsel, was so heard, and the court took the matter under consideration. 'Afterwards, to wit, on the tenth day of March aforesaid, the matter having been fully and duly considered, it was ordered that J. B. Wall be prohibited from practicing at the bar of the Circuit or District Courts of this district until further order therein. 'All of which matters are true, and as far as relates to the action of the court therein shown and set forth in the records of said court and the papers therein. 'And, further, answering, he says that J. B. Wall at no time denied active participation in the hanging as charged, nor answered the spirit and substance of said charge. "That when the motion for continuance was withdrawn by him, and the demand made that proof be made of the charge, upon inquiry your respondent ascertained that both the sheriff and mayor, who had alone opposed the action of the mob, and the only parties present not active participants, were absent from the city, and could not be summoned to testify without unadvisable delay; of all of which said J. B. Wall had knowledge. "That on account of the excited state of feeling existing at the time, the timidity of many, from the influential position of some of those engaged in the hanging, and the sympathy of others with the lynchers, it was not advisable to attempt to compel any resident of said city of Tampa, who was found to have personal knowledge of the matter, to testify against said J. B. Wall. "That said J. B. Wall had every opportunity to explain his presence and action in the matter as proven, if innocent, but made no attempt to do so. "That the evidence, although of but a single witness, for grounds already stated, was to your respondent positively conclusive beyond a reasonable doubt that said J. B. Wall had been guilty of active participation in a most immoral and criminal act, and a leader in a most atrocious murder, in defiance and contempt of all law and justice, and had thereby shown himself unfitted to longer retain the position of attorney in any court over which your respondent might have the honor to preside. 'Wherefore and upon which showing your respondent would most humbly submit to your Honors that said order prohibiting said J. B. Wall from practising as attorney should not be revoked nor he restored to the rights and privileges of an attorney of said courts. "JAMES W. LOCKE, "U. S. Dist. Judge, S. Dist. Fla. "Key West, Florida, December 2, 1882." It will be perceived that the rule to show cause, which was served upon the petitioner, contained a definite charge of a very heinous offence, and that an opportunity was given to him to meet it and to exonerate himself if he could do so. It would, undoubtedly, have been more regular to have required the charge to be made by affidavit, and to have had a copy thereof served (with the rule) upon the petitioner. But the circumstances of the case, as shown by the return of the judge, seem to us to have been sufficient to authorize the issuing of the rule without such an affidavit. The transaction in which the petitioner is charged with participating, was virtually in the presence of the court. It took place in open day, in front of the court-house, and during a temporary recess of the actual session of the court; and the awful result of the lawless demonstration was exhibited to the judge on his return to the court-room. Under the intense excitement which prevailed, it is not "wonderful" that no person could be found willing to make a voluntary charge against the petitioner or any one else; and yet, the fact that he was engaged as one of the perpetrators was so notorious, and was brought to the judge's knowledge by information so reliable and positive, that he justly felt it his duty to take official notice of it, and to give the petitioner an opportunity of repelling the charge. This was done is such a manner as not to deprive him of any substantial right. The charge was specific, due notice of it was given, a reasonable time was set for the hearing, and the petitioner was not required to criminate himself by answering under oath. In Ex parte Steinman and Hensel, 95 Pa. 220, where the county court on its own motion had cited the parties before it for publishing a gross libel upon the court, and had struck their names from the roll, though, on appeal, the order was reversed on other grounds, as to the mode of initiating the proceedings, Chief Justice SHARSWOOD, delivering the opinion of the court, said: 'We entertain no doubt that a court has jurisdiction without any formal complaint or petition, upon its own motion, to strike the name of an attorney from the roll in a proper case, provided he has had reasonable notice, and been afforded an opportunity to be heard in his defence.' In the case of Randall v. Brigham, 7 Wall. 523, 539, which was an action for damages brought by an attorney against a judge for striking his name from the roll unjustly and without authority, not having before him in making the order to show cause any charge of misconduct, except only a letter of a third person addressed to the grand jury; this court, speaking by Mr. Justice FIELD, said: 'But the claim of the plaintiff is not correct. The information imparted by the letter was sufficient to put in motion the authority of the court, and the notice to the plaintiff was sufficient to bring him before it to explain the transaction to which the letter referred. The informality of the notice, or of the complaint by letter, did not touch the question of jurisdiction. The plaintiff understood from them the nature of the charge against him; and it is not pretended that the investigation which followed was not conducted with entire fairness. He was afforded ample opportunity to explain the transaction and vindicate his conduct.' Looking at all the circumstances of the present case, we are not prepared to say that the course which was pursued rendered the proceedings void, as being coram non judice. And since they were not void, (though not strictly regular,) and since no substantial right of the petitioner was invaded, we do not think that the mere form of the proceeding requires us to interpose by the extraordinary remedy of mandamus. The next question to be considered is, whether the facts charged against the petitioner constitute a legitimate ground for striking his name from the roll. Of this we think there can be no doubt. It is not contended but that, if properly proven, the facts charged are good cause for removal from the bar. A moment's consideration will be sufficient to demonstrate this. It is laid down in all the books in which the subject is treated, that a court has power to exercise a summary jurisdiction over its attorneys to compel them to act honestly towards their clients, and to punish them by fine and imprisonment for misconduct and contempts, and, in gross cases of misconduct, to strike their names from the roll. If regularly convicted of a felony, an attorney will be struck off the roll as of course, whatever the felony may be, because he is rendered infamous. If convicted of a misdemeanor which imports fraud or dishonesty, the same course will be taken. He will also be struck off the roll for gross malpractice or dishonesty in his profession, or for conduct gravely affecting his professional character. In Archb. Pr. (Ed. by Chitty,) p. 148, it is said: "The court will, in general, interfere in this summary way to strike an attorney off the roll, or otherwise punish him, for gross misconduct, not only in cases where the misconduct has arisen in the course of a suit, or other regular and ordinary business of an attorney, but where it has arisen in any other matter so connected with his professional character as to afford a fair presumption that he was employed in or intrusted with it in consequence of that character." And it is laid down by Tidd that "where an attorney has been fraudulently admitted, or convicted (after admission) of felony, or other offence which renders him unfit to be continued an attorney, or has knowingly suffered his name to be made use of by an unqualified person, or acted as agent for such person, or has signed a fictitious name to a demurrer, as and for the signature of a barrister, or otherwise grossly misbehaved himself, the court will order him to be struck off the roll." 1 Tidd, Pr. 89, (9th Ed.) Where an attorney was convicted of theft, and the crime was condoned by burning in the hand, he was nevertheless struck from the roll. "The question is," said Lord MANSFIELD, "whether, after the conduct of this man, it is proper that he should continue a member of a profession which should stand free from all suspicion. * * * It is not by way of punishment; but the court in such cases exercise their discretion, whether a man whom they have formerly admitted is a proper person to be continued on the roll or not." Now, what is the offence with which the petitioner stands charged? It is not a mere crime against the law; it is much more than that. It is the prostration of all law and government; a defiance of the laws; a resort to the methods of vengeance of those who recognize no law, no society, no government. Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws, to trample them under foot, and to ignore the very bands of society, argues recreancy to his position and office, and sets a pernicious example to the insubordinate and dangerous elements of the body politic. It manifests a want of fidelity to the system of lawful government which he has sworn to uphold and preserve. Whatever excuse may ever exist for the execution of lynch law in savage or sparsely settled districts, in order to oppose the ruffian elements which the ordinary administration of law is powerless to control, it certainly has no excuse in a community where the laws are duly and regularly administered. But besides the character of the act itself, as denoting a gross want of fealty to the law and repudiation of legal government, the particular circumstances of place and time invest it with additional aggravations. The United States court was in session; this enormity was perpetrated at its door; the victim was hanged on a tree, with audacious effrontery, in the virtual presence of the court! No respect for the dignity of the government as represented by its judicial department was even affected; the judge of the court, in passing in and out of the place of justice, was insulted by the sight of the dangling corpse. What sentiments ought such a spectacle to arouse in the breast of any upright judge, when informed that one of the officers of his own court was a leader in the perpetration of such an outrage? We have no hesitation as to the character of the act being sufficient to authorize the action of the court. A question of greater difficulty is raised as to the legality of proceeding in a summary way on a charge of this nature. It is strenuously contended that when a crime is charged against an attorney for which he may be indicted, and the truth of the charge is denied or not admitted by him, it cannot be made the ground of an application to strike his name from the roll until he has been regularly convicted by a jury in a criminal proceeding; or, at least, that this is true, when the act charged was not committed in his professional character. As, in urging this argument, much stress is laid upon the fact that the petitioner, by his answer, denied the charge contained in the rule to show cause, it is proper to notice the manner in which this denial was made. The charge, as we have seen, was specific and particular: "That J.B. Wall, an attorney of this court, did, on the sixth day of this present month, engage in and with an unlawful, tumultuous, and riotous gathering, he advising and encouraging thereto, take from the jail of Hillsborough County, and hang by the neck until he was dead, one John, otherwise unknown, thereby showing an utter disregard and contempt for the law and its provisions," etc. The denial of this charge was a mere negative pregnant, amounting only to a denial of the attending circumstances and legal consequences ascribed to the act. The respondent denied 'counseling, advising, encouraging, or assisting an unlawful, tumultuous, and riotous gathering or mob in taking one John from the jail of Hillsborough County, and causing his death by hanging, in contempt and defiance of the law.' He was not required to answer under oath, and did not do so. Yet, free from this restriction, he did not come out fully and fairly and deny that he was engaged in the transaction at all; but only that he did not engage in it with the attendant circumstances and legal consequences set out in the charge. Even the name of the victim is made a material part of the traverse. Upon such a special plea as this, we think, the court was justified in regarding the denial as unsatisfactory. It was really equivalent to an admission of the substantial matter of the charge. Nevertheless, the marshal of the court was called as a witness, and clearly proved the truth of the charge; and no evidence was offered in rebuttal. The case, as it stood before the court, was as clear of all doubt as if the petitioner had expressly admitted his participation in the transaction. It is necessary, however, that we should examine the authorities on the question raised by the petitioner, as to the power of the court to proceed against him without a previous conviction upon an indictment. It has undoubtedly been held in some of the cases that where the offence is indictable, and the facts are not admitted, a regular conviction must be had before the court will exercise its summary jurisdiction to strike the name of the party off the roll. At first view this was supposed to be the purport of Lord DENMAN'S judgment in the anonymous case reported in 5 Barn. & Adol. 1088. That was a case of professional misconduct in pecuniary transactions. Lord DENMAN is reported as saying: "The facts stated amounted to an indictable offence. Is it not more satisfactory that the case should go to a trial? I have known applications of this kind, after conviction, upon charges involving professional misconduct; but we should be cautious of putting parties in a situation where, by answering, they might furnish a case against themselves, on an indictment to be afterwards preferred. On an application calling upon an attorney to answer the matters of an affidavit, it is not usual to grant the rule if an indictable offence is charged." And the Solicitor-General, Sir JOHN CAMPBELL, who made the application in that case, being requested to look at the authorities, afterwards stated that he could find no precedent for it. In that case, however, the rule applied for was one requiring the attorney to answer charges on oath. On a similar application in a subsequent case, charging perjury and fraud, (Anon. 3 Nev. & P. 389,) Lord DENMAN said: 'Would not an indictment for perjury lie upon these facts? We are not in the habit of interfering in such a case, unless there is something amounting to an admission on the part of the attorney, which would render the intervention of a jury unnecessary." In another anonymous case in the Exchequer, (2 Dowl. Pr. 110,) where an attorney had been sued in an action at law for an aggravated libel, and a verdict had been rendered against him with only one shilling damages; on an application being then made to strike him off the roll, Lord LYNDHURST said: 'Have you any instance of such an application on a verdict for the same criminal act, but for which no criminal proceedings have been taken?' and intimated that if there was any such case, the rule would be granted, but added: 'Here there was conflicting evidence at the trial, and it is doubtful whether the publication was brought home to the defendant; and the jury seemed to have so considered it:' and the rule was refused. But this matter was carefully reviewed by the Court of Exchequer in the subsequent case of Stephens v. Hill, 10 Mees. & W. 28, where motion was made against an attorney who had conspired with others to induce a witness for the opposite party to absent himself from a trial, giving him money, etc. It was objected that the application to strike from the roll could not be heard on these charges without a conviction, inasmuch as a conspiracy is an indictable offence. Lord ABINGER took a distinction between a rule to show cause why an attorney should not be struck off the roll, and a rule calling on him to answer the matters of an affidavit with a view to strike him off the roll. The latter course he conceded would be improper, if the offence was indictable, because it would compel the attorney to criminate himself; but not so the former, for he might clear himself without answering under oath; and that this was all that Lord DENMAN meant in the case before him. Lord ABINGER said that as long as he had known Westminister Hall he had never heard of such a rule as that an attorney might not be struck off the roll for misconduct in a cause merely because the offence imputed to him was of such a nature that he might have been indicted for it; but he said that in the case of applications calling upon an attorney to answer the matters of an affidavit, he had known Lord KENYON and Lord ELLENBOROUGH frequently say, you cannot have a rule for this purpose, because the misconduct you impute to the man is indictable; but you may have one to strike him off the roll. After noticing and explaining the language attributed to Lord DENMAN, as before stated, Lord ABINGER adds: "If, indeed, a case should occur where an attorney has been guilty of some professional misconduct for which the court, by its summary jurisdiction, might compel him to do justice, and at the same time has been guilty of something indictable in itself, but not arising out of the cause, the court will not inquire into that with a view of striking him off the roll, but would leave the party aggrieved to his remedy by a criminal prosecution." This expression, about leaving the party aggrieved to his remedy by a criminal prosecution, is frequently found in the English cases, and has reference to the practice in that contry of regarding the party injured by the perpetration of a crime as the proper person to prosecute the offender; and one, indeed, upon whom a duty, in some sort, rested to institute such prosecution. The court would, therefore, hesitate to take any summary action against the offender which might remove the inducements the injured party would otherwise have for proceeding criminally against him, and thus interfere with the course of justice. In this country, the prosecution of criminal offences is generally committed to the charge of a public officer, and sufficient emolument is attached to the duty of prosecution to secure its faithful performance. The same reason, therefore, does not exist here, as in England, for leaving it to the injured party to prosecute for the criminal offence. So far as the offender himself is concerned, it is true, the reason is equally strong against compelling him to answer under oath charges preferred against him, and in favor of giving him a trial by jury in all cases of doubt or of conflicting evidence. That a reluctance to interfere with the incentive to prosecute criminally in these cases operated strongly upon the judicial mind in England, is manifest from the fact, that after a prosecution had been made, and the duty of the injured party had been performed, the courts never hesitated to strike the accused from the roll, if found guilty by a jury, even though judgment against him had been arrested, or reversed, or the offence had been pardoned or condoned;* thus showing that it is not a technical conviction which is required, but a fair effort on the part of the prosecutor to bring the offender to justice; coupled also with the fact that a jury is the most suitable tribunal for passing upon a question of fact depending upon conflicting evidence. Some expressions in the cases cited, including the remarks made by Lord ABINGER in Stephens v. Hill, seem to imply that the summary jurisdiction will not be exercised where the charges made against an attorney affect only his general character as such, and do not amount to malpractice in a particular cause. But subsequent decisions are to the effect that it is properly extended to cases affecting his general character also. Thus, in Re Blake, 3 El. & El. 34, an attorney was struck from the roll for having improperly collected the money due on a mortgage which he had pledged as collateral security for a loan, and which he borrowed from the pledgee on some false pretence. On a rule to show cause and reference to the master, the facts were found to be truly charged; and, although he was not acting as attorney in the matter, the court suspended his certificate for two years, on the general ground (as stated by Lord Chief Justice COCKBURN) that where an attorney is shown to have been guilty of gross fraud, although not such as to render him liable to an indictment, nor committed by him while the relation of attorney and client was subsisting between him and the person defrauded, or in his character as an attorney, the court will not allow suitors to be exposed to gross fraud and dishonesty at the hands of one of its officers. And in a subsequent case, (Re Hill, L. R. 3 Q. B. 543,) where an attorney acting, not as such, but as clerk to a firm of attorneys, appropriated to his own use money which came to his hands on the sale of an estate; on a motion to strike his name from the roll, it was objected that, as his offence was indictable, a conviction was necessary before this proceeding could be had. Lord Chief Justice COCKBURN said: "No case has, so far as I am aware, come before the court under the precise circumstances under which this case presents itself, namely, of an act of delinquency committed by an attorney's clerk, who at the same time is an attorney, though at that time not acting as such; but still I think, on every principle of justice, we ought not the less to entertain the application. * * * If the delinquent had been proceeded against criminally upon the facts admitted by him, it is plain that he would have been convicted of embezzlement; and, upon that conviction being brought before us, we should have been bound to act. If there had been a conflict of evidence upon the affidavits, that might be a very sufficient reason why the court should not interfere until the conviction had taken place; but here we have the person against whom the application is made admitting the facts.' Mr. Justice BLACKBURN, in the same case, said: "I think when we are called upon, in the exercise of our equitable jurisdiction, to order an attorney to perform a contract, to pay money, or to fulfil an undertaking, there we have jurisdiction only if the undertaking or the contract is made in his character of attorney, or so connected with his character of attorney as to bring it within the power of the court to require that their officer shall behave well as an officer. But where there is a matter which would subject the person in question to a criminal proceeding, in my opinion, a different principle must be applied. We are to see that the officers of the court are proper persons to be trusted by the court with regard to the interests of suitors, and we are to look to the character and position of the persons, and judge of the acts committed by them, upon the same principle as if we were considering whether or not a person is fit to become an attorney. * * * It should be considered whether the particular wrong done is connected with the character of an attorney. The offence morally may not be greater, but still, if done in the character of an attorney, it is more dangerous to suitors, and should be more severely marked. I agree that where it is denied that a criminal offence has been committed, the court ought not to decide on affidavits a question which ought to be tried before a jury.' This case is important as showing the latest consideration of the question by the English courts, and by the most eminent judges of those courts. The rule to be deduced from all the English authorities seems to be this: that an attorney will be struck off the roll if convicted of felony, or if convicted of a misdemeanor involving want of integrity, even though the judgment be arrested or reversed for error; and also (without a previous conviction) if he is guilty of gross misconduct in his profession, or of acts which, though not done in his professional capacity, gravely affect his character as an attorney: but in the latter case, if the acts charged are indictable, and are fairly denied, the court will not proceed against him until he has been convicted by a jury; and will in no case compel him to answer under oath to a charge for which he may be indicted. This rule has, in the main, been adopted by the courts of this country; though special proceedings are provided for by statute in some of the States, requiring a formal information under oath to be filed, with regular proceedings and a trial by jury. The cases are quite numerous in which attorneys, for malpractice or other misconduct in their official character, and for other acts which showed them to be unfit persons to practise as attorneys, have been struck from the roll upon a summary proceeding without any previous conviction of a criminal charge. See, amongst others, the Case of Niven, 1 Wheeler, Crim. Cas. 337, note; Ex parte Levi S. Burr, Id. 503; S. C. 2 Cranch, C. C. 379; In re Peterson, 3 Paige, 510; Ex parte Brown, 1 How. (Miss.) 303; In re Mills, 1 Mich. 392; Ex parte Secombe, 19 How. 9; In re John Percy, 36 N. Y. 651; Dickens's Case, 67 Pa. 169; In re Hirst and Ingersoll, 9 Phila. 216; Baker v. Com. 10 Bush, 592; Penobscot Bar v. Kimball, 64 Me. 140; Matter of George W. Wool, 36 Mich. 299; People v. Goodrich, 79 Ill. 148; Delano's Case, 58 N. H. 5; Ex parte Walls, 64 Ind. 461; Matter of Eldridge, 82 N. Y. 161. But where the acts charged against an attorney are not done in his official character, and are indictable, and not confessed, there has been a diversity of practice on the subject: in some cases it being laid down that there must be a regular indictment and conviction before the court will proceed to strike him from the roll; in others, such previous conviction being deemed unnecessary. The former view is taken, or seems to be assumed, in the cases we will now cite. In an anonymous case, reported in 2 Halst. 162, (1824,) where the charge was larceny, the court refused the rule to strike off the roll, because the offence was indictable, and there had been no conviction. In State v. Foreman, 3 Mo. 412, the court refused to disbar an attorney for passing counterfeit money, knowing it to be counterfeit, and escaping from prison before being convicted therefor; the ground of refusal being that it was not a case within the Missouri statute, which required a conviction. Of course, being governed by the statute, this case is not in point. In Fisher's Case, 6 Leigh, 619, (1835,) Fisher commented to a jury in a manner which the judge deemed grossly unprofessional and disrespectful to the court; and on the next day, after reciting the circumstances, made an order suspending his license for 12 months. This order was reversed by the Court of Appeals, on the ground that the party proceeded against must be regularly prosecuted by indictment or information, and found guilty by a jury. But as this decision was based upon a statute of Virginia, prescribing the course of proceeding, it is no authority on the point in question. In The State v. Chapman, 11 Ohio, 430, an attorney had been charged with theft, and brought an act of slander therefor; the defendant pleaded the truth in justification, and obtained a verdict establishing his defence. Upon this, a rule was granted against the attorney to show cause why he should not be struck off the roll. He proved explanatory circumstances, and the court held that the verdict in the civil action was not sufficient to establish the charge of larceny, and discharged the rule. In Beene v. The State, 22 Ark. 149, where the defendant had made an unwarrantable and atrocious personal attack upon the Circuit Judge for his action as judge, on application of the county bar to strike his name from the roll the rule was granted; but the Supreme Court of Arkansas reversed the order on the ground that the proceedings were irregular, and not in pursuance of the statute, which required regular charges to be exhibited, verified by affidavit, and a time fixed for hearing. The court also held that where the offence is indictable, there must be a regular conviction before the party can be struck off the roll; if not indictable, he was entitled to be tried by the jury. This case seems to have been decided upon the statutes of Arkansas. In Ex parte Steinman and , 95 Pa. 220, the respondents published a libel against the judges of the Quarter Sessions of Lancaster County, Pennsylvania, accusing them of political motives in allowing a defendant to be acquitted. On being cited to show cause why they should not be struck off the roll, they took the ground, amongst other things, that they were charged with an indictable offence, and were entitled to a trial by jury. The court having made the rule absolute, they appealed, and the Supreme Court of Pennsylvania reversed the order. Chief Justice SHARSWOOD, in delivering the opinion of the court, said: 'No question can be made of the power of a court to strike a member of the bar from the roll for official misconduct. * * * We do not mean to say that there may not be cases of misconduct not strictly professional, which would clearly show a person not to be fit to be an attorney, nor fit to associate with honest men. Thus, if he was proved to be a thief, a forger, a perjurer, or guilty of other offences of the crimen falsi. But no one, we suppose, will contend that for such an offence he can be summarily convicted and disbarred by the court without a formal indictment, trial, and conviction by a jury, or upon confession in open court.' Reference was then made to a provision in the Bill of Rights of the Pennsylvania constitution of 1874, that 'no conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers, etc., where the fact that such publication was not maliciously or negligently made, shall be established to the satisfaction of the jury;' and it was held that this provision, at all events, entitled the parties to a jury trial. The cases now cited do undoubtedly hold that where the offence charged is indictable and is committed outside of the attorney's professional employment or character, and is denied by him, a conviction by a jury should be had before the court will take action for striking his name from the roll. There are other cases, however, in which it is held that a previous conviction is not necessary. In Ex parte Burr, 1 Wheeler, Crim. Cas. 503, (S. C. 2 Cranch, C. C. 379,) the Circuit Court of the District of Columbia struck Burr off the roll on charges made by Mr. Key, of various instances of malpractice, and also of dishonest conduct, in procuring deeds of property from persons in distress, etc. Burr objected, among other things, that he was entitled to a trial by jury. The court examined witnesses, who were cross-examined by the defendant, and Chief Justice CRANCH delivered an elaborate opinion, concluding by making the rule absolute for disbarring the accused, holding that proceedings by attachment, as for contempt and to purify the bar of unworthy members, and not within those provisions of the constitution which guaranty a trial by jury. This case was brought to the attention of this court on an application for a mandamus to compel the Circuit Court to restore Burr to the bar, and the writ was refused. The court, by Chief Justice MARSHALL, expressed a disinclination to interpose unless the conduct of the court below was irregular or flagrantly improper; as where it had exceeded its power or decided erroneously on the testimony; and upon the testimony, it would be unwilling to interpose where any doubt existed. Fields v. State, Mart. & Y. 168, was the case of a constable, (but placed upon the same ground as that of attorneys,) and the charge was extortion. The supreme court of Tennessee, by CATRON, J., held that a previous conviction was not necessary to enable the court below to suspend from office; that the constitutional privilege of trial by jury for crime does not apply to prevent courts from punishing its officers for contempt, and to regulate them or remove them in particular cases; that removal from office for an indictable offence is no bar to an indictment; that it is a proceeding in its nature civil, and collateral to any criminal prosecution by indictment; and that even if acquitted by a jury the party could be removed if the court discovered from the facts proved on the trial that he was guilty of corrupt practices. In the subsequent case of Smith v. The State, 1 Yerg. 228, the charge was that the attorney had accepted a challenge in Tennessee to fight a duel, and had fought with and killed his antagonist in Kentucky, where an indictment had been found against him. He demurred to the charge, and judgment was given against him on the demurrer, that his name be struck from the roll. The Supreme Court of Tennessee held the charge to be sufficient; but that, instead of receiving a demurrer, the Circuit Court should have proceeded to take the proofs to ascertain the truth of the charge. The court, by Justice CATRON, said: "The principle is almost universal in all governments, that the power which confers an office has also the right to remove the officer for good cause; the county court; constables, etc.; the senate; officers elected by the legislature and people; in all these cases the tribunal removing is of necessity the judge of the law and fact; to ascertain which, every species of evidence can be heard, legal in its character, according to common-law rules, and consistent with our Constitution and laws. This court, the Circuit Court, or the county court, on a motion to strike an attorney from the rolls, has the same right, growing out of a similar necessity, to examine evidence of the facts, that the senate of the State has when trying an impeachment. * * * The attorney may answer the charges in writing if he chooses, when evidence will be heard to support or to resist them; or, if he does not answer, still the charges must be proved, or confessed by the defendant, before he can be stricken out of the roll.' The cause was thereupon remanded to the Circuit Court, to hear the proofs; and it was declared that if the facts were proved as charged, it would be amply sufficient to authorize that court to strike the defendant from the roll, even though there had been no law in Tennessee for the suppression of dueling. Here, it will be observed, there was no conviction; nothing but an indictment found in another State; and yet the Supreme Court of Tennessee held that the court below might lawfully proceed with the case. In Perry v. The State, 3 Greene, 550, there were charges of misconduct as an attorney, and of perjury. The charge was dismissed for want of certainty; but as to the charge of false swearing, which it was contended could not be set up without a previous conviction, the court said that a conviction was not necessary. In Re Percy, 36 N. Y. 651, an attorney was struck off the roll on the ground that his general reputation was bad; that he had been several times indicted for perjury, one or two of the indictments being still pending, and that he was a common mover and maintainer of suits on slight and frivolous pretexts. The order was affirmed on appeal. Some of the offences charged in this case were of an indictable character, and one point raised on the appeal was, that the court has no right to call upon an attorney to answer such charges, because it compels him to give evidence against himself. But to this the court answered that he is not compelled to be sworn, but may introduce evidence tending to show his innocence. In Penobscot Bar v. Kimball, 64 Me. 140, an attorney was accused of misconduct, both in his professional character and otherwise, obtaining money by false pretences, and the like. He had also, many years before, been convicted of forgery of a deposition used in court, but had been pardoned. It was held that he was an unfit person to be an attorney, and was struck from the roll. In this case indictable offences, of which the party had not been regularly convicted, were embraced in the charges against him. In Delano's Case, 58 N. H. 5, an attorney, being collector of taxes for the town, appropriated the money to his own use, intending to return it; but failing to do so, he was struck from the roll. The offence in this case was clearly of an indictable character, and no conviction had been obtained against him in a criminal proceeding. In the Matter of George W. Wool, 36 Mich. 299, a bill in equity having been filed against an attorney charging him with procuring a deed to himself by forgery or substitution of a paper, and a decree having been made against him, the court entered an order to show cause why he should not be struck from the roll, allowing him to present affidavits in exculpation; but no sufficient cause being shown against the rule, it was made absolute. Here was an indictable offence, and no previous conviction; yet the court, upon the evidence it had before it, struck the party's name from the roll. In Ex parte Walls, 64 Ind. 461, the charge was of forging an affidavit to obtain a change of venue in a cause pending in the court. Special proceedings were had under the statute of Indiana, and the party was struck off the roll. On error brought, it was objected that he should have been first regularly convicted of the crime by a prosecution on the part of the state. The court held that this is only true when the object is to inflict punishment, but not when it is to disbar the party, any more than when forgery is proved as a defence in a civil suit; that whilst a conviction would have authorized a disbarment, the proceeding to disbar might precede the criminal prosecution. This case, it is true, was for malpractice as an attorney, and therefore may not be strictly in point; but the ground taken by the court was general, and applicable to all cases for which an attorney may be disbarred. In the recent case of People v. Appleton, 15 Chi. Leg. N. 241, where the charge against an attorney was for disposing of property held by him as a trustee, and appropriating the proceeds to his own use, but was not made out to the satisfaction of the court; it was observed, however, that whilst as a general rule, if an attorney is guilty of misconduct in his private character, and not in his official character as attorney, relief can only be obtained by a prosecution in a proper court, at the suit of the party injured, yet that 'it is not to be held that there are no exceptions; that there are not cases in which an attorney's misconduct in his private capacity merely, may be of so gross a character that the court will exercise the power of disbarment. There is too much of authority to the contrary to say that.' From this review of the authorities in this country, it is apparent, that whilst it may be the general rule that a previous conviction should be had before striking an attorney off the roll for an indictable offence, committed by him when not acting in his character of an attorney, yet that the rule is not an inflexible one. Cases may occur in which such a requirement would result in allowing persons to practise as attorneys, who ought, on every ground of propriety and respect for the administration of the law, to be excluded from such practice. A criminal prosecution may fail by the absence of a witness, or by reason of a flaw in the indictment, or some irregularity in the proceedings; and, in such cases, even in England, the proceeding to strike from the roll may be had. But other causes may operate to shield a gross offender from a conviction of crime, however clear and notorious his guilt may be,—a prevailing popular excitement; powerful influences brought to bear on the public mind, or on the mind of the jury; and many other causes which might be suggested; and yet, all the time, the offender may be so covered with guilt, perhaps glorying in it, that it would be a disgrace to the court to be obliged to receive him as one of its officers, clothed with all the prestige of its confidence and authority. It seems to us that the circumstances of the case, and not any iron rule on the subject, must determine whether, and when, it is proper to dispense with a preliminary conviction. If, as Lord Chief Justice COCKBURN said, the evidence is conflicting, and any doubt of the party's guilt exists, no court would assume to proceed summarily, but would leave the case to be determined by a jury. But where the case is clear, and the denial is evasive, there is no fixed rule of law to prevent the court from exercising its authority. The provisions of the Constitution, which declare that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, and that the trial of all crimes, except in cases of impeachment, shall be by jury, have no relation to the subject in hand. As held by the Supreme Court of Tennessee in Fields v. The State, (and the same view is expressed in other cases,) the constitutional privilege of trial by jury for crimes does not apply to prevent the courts from punishing its officers for contempt, or from removing them in proper cases. Removal from office for an indictable offence is no bar to an indictment. The proceeding is in its nature civil, and collateral to any criminal prosecution by indictment. The proceeding is not for the purpose of punishment, but for the purpose of preserving the courts of justice from the official ministration of persons unfit to practise in them. Undoubtedly, the power is one that ought always to be exercised with great caution; and ought never to be exercised except in clear cases of misconduct, which affect the standing and character of the party as an attorney. But when such a case is shown to exist, the courts ought not to hesitate, from sympathy for the individual, to protect themselves from scandal and contempt, and the public from prejudice, by removing grossly improper persons from participation in the administration of the laws. The power to do this is a rightful one; and, when exercised in proper cases, is no violation of any constitutional provision. It is contended, indeed, that a summary proceeding against an attorney to exclude him from the practice of his profession on account of acts for which he may be indicted and tried by a jury, is in violation of the Fifth Amendment of the Constitution, which forbids the depriving of any person of life, liberty, or property without due process of law. But the action of the court in cases within its jurisdiction is due process of law. It is a regular and lawful method of proceeding, practised from time immemorial. Conceding that an attorney's calling or profession is his property, within the true sense and meaning of the Constitution, it is certain that in many cases, at least, he may be excluded from the pursuit of it by the summary action of the court of which he is an attorney. The extent of the jurisdiction is a subject of fair judicial consideration. That it embraces many cases in which the offence is indictable is established by an overwhelming weight of authority. This being so, the question whether a particular class of cases of misconduct is within its scope, cannot involve any constitutional principle. It is a mistaken idea that due process of law requires a plenary suit and a trial by jury, in all cases where property or personal rights are involved. The important right of personal liberty is generally determined by a single judge, on a writ of habeas corpus, using affidavits or depositions for proofs, where facts are to be established. Assessments for damages and benefits occasioned by public improvements are usually made by commissioners in a summary way. Conflicting claims of creditors, amounting to thousands of dollars, are often settled by the courts on affidavits or depositions alone. And the courts of chancery, bankruptcy, probate, and admiralty administer immense fields of jurisdiction without trial by jury. In all cases, that kind of procedure is due process of law which is suitable and proper to the nature of the case, and sanctioned by the established customs and usages of the courts. "Perhaps no definition," says Judge COOLEY, "is more often quoted than that given by Mr. WEBSTER in the Dartmouth College Case: 'By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society.' " Cooley, Const. Lim. 353. The question, what constitutes due process of law within the meaning of the Constitution, was much considered by this court in the case of Davidson v. New Orleans, 96 U. S. 97; and Mr. Justice MILLER, speaking for the court, said: "It is not possible to hold that a party has, without due process of law, been deprived of his property, when, as regards the issues affecting it, he has, by the laws of the State a fair trial in a court of justice, according to the modes of proceeding applicable to such a case." And, referring to the case of Murray's Lessee v. Hoboken Land & Imp. Co., 18 How. 272, he said: "An exhaustive judicial inquiry into the meaning of the words 'due process of law,' as found in the Fifth Amendment, resulted in the unanimous decision of this court, that they do not necessarily imply a regular proceeding in a court of justice, or after the manner of such courts." We have seen that, in the present case, due notice was given to the petitioner, and a trial and hearing was had before the court, in the manner in which proceedings against attorneys, when the question is whether they should be struck off the roll, are always conducted. We think that the court below did not exceed its powers in taking cognizance of the case in a summary way, and that no such irregularity occurred in the proceeding as to require this court to interpose by the writ of mandamus. The writ of mandamus is, therefore, refused and the rule to show cause is discharged. FIELD, J., dissenting. I am unable to concur with my associates in their disposition of this case, and I will briefly state the grounds of my dissent. I appreciate to the fullest extent the indignation of the district judge at the lawless proceedings of the mob in his district, in forcibly taking a prisoner from jail and putting him to death. There is no language of reprobation too severe for such conduct; for, however great the offence of the prisoner, the law prescribed its punishment, and appointed the officers by whom it was to be executed. The usurpation of their duties, and the infliction of another punishment, were themselves the greatest of crimes, for which the actors should be held amenable to the violated laws of the State. I join, also, with the learned justice of this court, who expresses the views of the majority, in his denunciation of all forms of lawless violence; and I agree with him that the enormity of the offence is increased, when the violence is aided and encouraged by an attorney, bound by his oath of office to uphold the administration of justice in the established tribunals of the country. Nor can the offence be palliated by the statement of counsel, that the fury of the mob had been excited by the attempt of the victim of its violence to outrage the person of a young female. The question here is, not what indignation may justly be expressed for the alleged offence of the victim, or for that of his assailants; nor what should be done with a person thus guilty of participating in and encouraging the lawless proceedings of the mob: but in what way is his guilt to be determined; when does the law declare him guilty, so that the court may, upon such established guilt, proceed to inflict punishment for the offence and remove him from the bar. I do not think that the Circuit Court of the United States could declare the petitioner in this case guilty of a crime against the laws of Florida, upon information communicated to its judge on the streets, and thereupon cite him to show cause why he should not be stricken from the roll of attorneys of the court, and be disbarred from practising therein. And though the declaration of the court, upon what was assumed to have been the conduct of the petitioner, contained in the recital of the order directing the citation, be treated, contrary to its language, merely as a charge against him, and not as a judgment upon his conduct, I cannot think that the court had authority to formulate a charge against him of criminal conduct not connected with his professional duties, upon the verbal statements of others, made to its judge outside of the court and without the sanction of an oath. And I cannot admit that upon a charge thus formulated the petitioner could be summarily tried. In no well-ordered system of jurisprudence, by which justice is administered, can a person be tried for a criminal offence by a court, the judge of which is himself the accuser. The first proceeding disclosed by the record is the following order: "(Circuit Court of the U. S., Southern District of Florida. March Term, 1882.) "Whereas, it has come to the knowledge of this court that one J. B. Wall, an attorney of this court, did, on the sixth day of this present month, engage in, and with an unlawful, tumultuous, and riotous gathering, he advising and encouraging thereto, take from the jail of Hillsborough County, and hang by the neck until he was dead, one John, otherwise unknown, thereby showing such an utter disregard and contempt for the law and its provisions, which, as a sworn attorney, he was bound to respect and support, as shows him to be totally unfitted to occupy such position: It is hereby ordered that said J. B. Wall be cited to appear and show cause, by 11 o'clock, Wednesday, the eight instant, why his name should not be stricken from the roll of attorneys, and he be disbarred and prohibited from practising herein. "JAMES W. LOCKE, District Judge." "Tampa, Florida, March 7, 1882." How these matters came to the knowledge of the court is not here disclosed, but in the return of the judge to the alternative writ of mandamus from this court we are enlightened on this point. He states that on the sixth of March, 1882, on the adjournment of the court for dinner, in passing from the court-house he saw a person brought to the jail by two officers; that on his return to the court-house, a little over an hour afterwards, he saw the dead body of the prisoner hanging from a tree in front of the court-house door, whereby he became personally informed of the commission of a most serious offence against the laws. He also states that on the same afternoon "he was informed of the active participation in said crime of one J. B. Wall, an attorney of said court, by an eye-witness, in whom the most implicit confidence could be placed, but who declined to make any charge or affidavit of such fact on account of a fear of said Wall's influence, and the local feeling it would cause against him, the said witness; that not only from the direct statements of eye-witnesses, but from numerous other sources, reliable information of like import was received; whereupon said J. B. Wall, the petitioner, was, on the said seventh day of March, during a session of the Circuit Court of the United States, in open court, charged in writing by the respondent herein, as judge, with having, with an unlawful, tumultuous, and riotous gathering, he advising and encouraging thereto, taken from the jail of Hillsborough County, and hanged to a tree by the neck until he was dead, a man, to the court known only as John." Here we have the words of the judge himself, that he acted upon the statements of parties whose names are not given, nor is their language. His own conclusions as to their import, credibility, and weight are all that is furnished. The statements thus made to him were not evidence before the court for any purpose whatever; and would not justify its action upon any subject over which it has jurisdiction. Suppose that he was called to the stand, and asked why he had made the charge against the petitioner, and what his knowledge was on the subject. He could only have answered, "I can state nothing of my own knowledge; I can merely repeat what others have said to me; they decline to make any charge themselves; they will not confront the accused; but I have implicit confidence in their statements, though they will not verify them by oath." And yet, upon these outside, ex parte, unsworn sayings of others, who will not face the accused, and whose words are not given, he directs an order to be entered in the Circuit Court reciting—not that the petitioner is charged by others,—not that it appears by the sworn reports of eye-witnesses,—but that "it has come to the knowledge of the court" that the petitioner had engaged in "an unlawful, tumultuous, and riotous gathering, he advising and encouraging" the same, to take a person from the county jail and hang him by the neck until he was dead, thus showing an utter disregard and contempt for the law and its provisions, and himself to be totally unfitted to occupy the position of an attorney of the court. This is not a charge against the petitioner either in form or language, but a declaration of his guilt in advance of a hearing, founded upon what is termed 'knowledge of the court.' For this declared guilt he is summoned to show cause why he should not be disbarred. According to the return of the judge, the recital in the order is not correct. No such matter as is there stated ever came, in any legal way, to the knowledge of the court. Information which he gathered in conversation with others, rumors on the streets, statements communicated outside of the court-room, secret whisperings of men who dare not or will not speak openly and verify their statements, do not constitute such "knowledge of the court" as to make it the basis of judicial proceedings affecting any one's rights. Were not this the case, no man's rights would be safe against the wanton accusation of parties on the streets, whose stories might reach the ear of the judge. The petitioner appeared upon the citation, and objected to the authority and jurisdiction of the court to issue the rule and require him to answer it, first, because the rule did not show that the matters there charged took place in the presence of the court, or were brought to its knowledge by petition or complaint in writing, under oath; and, second, because he was charged in the rule with a high crime against the laws of Florida, not cognizable by the court, and for which, if proven, he was liable to indictment and prosecution before the State court. The petitioner also denied counseling, advising, encouraging, or assisting an unlawful, tumultuous, and riotous gathering, or mob in taking the person named from the jail of the county and causing his death by hanging, or that he had been guilty of any unprofessional or immoral conduct which showed him to be unfit for the position of an attorney of the court. The court overruled the objections, and called a witness to prove the participation of the prisoner in the crime alleged. The testimony of this witness, which was reduced to writing, is contained in the record. It is to the effect that he saw the petitioner and others go to the sheriff's house on the sixth of March, and, having heard that a sheriff's posse had been summoned to protect the jail, he thought, by their orderly manner, that they were the posse going for instructions; that when they came out he heard one of the party remark, "We have got all of you we want;" that he then thought something was wrong, and followed them, and saw them coming out of the jail with the prisoner; that the petitioner was with the prisoner, walked beside him, and, witness thinks, had hold of him until they crossed the fence; that after that he did not see the petitioner any more until the matter was all over. The witness further testified that he could not name any man in the crowd, which numbered over a hundred, except the sheriff; that he was excited and did not notice who they were. He did not see the petitioner leave the crowd, though he might have done so without the witness seeing him. Upon this uncertain, insufficient, and inconclusive testimony, which does not show a participation of the petitioner in "advising and encouraging" the lawless proceedings, and is consistent with his opposition to them, the judge was entirely satisfied. His language on the subject is: "That the evidence, although of but a single witness, for grounds already stated, was to your respondent positively conclusive beyond a reasonable doubt that said J. B. Wall had been guilty of active participation in a most immoral and criminal act, and a leader in a most atrocious murder, in defiance and contempt of all law and justice, and thereby shown himself unfitted to longer retain the position of attorney in any court over which your respondent might have the honor to preside." Nothing could more plainly illustrate the wisdom of the rule that the accuser should not be the judge of the accusation. The judge very naturally felt great indignation at the lawless proceedings of the mob in hanging the prisoner, and, as he states, had heard reports inculpating the petitioner as a participant therein. His indignation, whether arising from such reported participation or otherwise, must have possessed him when he had the petitioner before him, for nothing else can explain the extraordinary conclusion he reached upon the testimony taken. That testimony shows merely a mingling of the petitioner with the crowd engaged in the unlawful purpose; it does not necessarily show his participation in the execution of that purpose. There was no evidence that he encouraged the proceedings. There was no evidence as to what he did say to the crowd. He may have advised against their action. The witness said nothing on the subject, nor did he see the petitioner after the crowd reached the fence. The petitioner was not seen at the execution, nor is there any evidence that he was present; and yet, the vague testimony of this excited witness, as to matters entirely consistent with innocence, is held by the judge "to be positively conclusive beyond a reasonable doubt" that the petitioner was guilty of active participation in a criminal act and "a leader in a most atrocious murder." There are some other things also in the return of the judge which are outside of the record of proceedings in the Circuit Court, and inconsistent with them, as that the petitioner demanded that proof should be made of the matter charged. His main position was that the court had no jurisdiction to require him to answer at all, because charged in the rule with a crime against the laws of Florida, not cognizable in that court, and for which, if proven, he was liable to indictment and conviction in the State court,—a position inconsistent with a demand of proof of the charge. Objection is taken here—though not taken in the court below—to the form of the petitioner's denial, to what is termed the charge of the judge, it being called by my brethren a negative pregnant. This is, indeed, a singular objection, in view of the fact that there was, in truth, as already said, no formal charge against the petitioner. The court assumed, and declared that it had come to its knowledge, that he was guilty of a public offence which unfitted him to be an attorney, and called upon him to show cause why he should not be disbarred for it. If the court had such knowledge, a denial by him was useless, and the taking of testimony on the subject an idle proceeding. He might have replied to the judge who constituted the court: "Who made you a judge to affirm my guilt, in advance of hearing, upon street rumors? I decline to answer you at all, you having thus prejudged and condemned me." With what propriety could the court have then proceeded? What legal reason could it have given for its action? I am unable to perceive that it could have given any. Treating, however, the preannounced judgment of the court as a charge, the answer of the petitioner might have been more general than it was. It was sufficiently specific to meet all the rules of pleading in criminal cases; and I do not think that the nicety exacted in an answer to a bill of discovery in a chancery suit was required. It was enough that the answer was a denial of the offence alleged, and could in no way be tortured into any admission of guilt. But apart from the consideration of the form of the petitioner's answer, or the weight to be given to the evidence of the excited witness, I cannot assent to the doctrine that, by virtue of any power which a court possesses over attorneys, it can try one for a felony upon a proceeding to disbar him. The Constitution of the United States and of every State has made it a part of the fundamental law of the land that "no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury," except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger. A felony is an infamous crime. No person charged therewith can be held to answer therefor; that is, can, in any other form of proceeding, be required to explain his conduct or vindicate his action. This provision excludes an inquiry, and, of course, any possible punishment for an imputed crime, except upon a conviction under such presentment or indictment. If a party is otherwise tried and punished, the constitutional guaranty is violated in his person. If one court can, upon information communicated to its judge, in any other than a legal way, that a public offence has been committed by an attorney, call upon him to show satisfactorily that the charge is unfounded or be disbarred, so may all courts which have the power to admit attorneys, and, of course, this court. And what a spectacle would be presented if, upon reports like those in this case, or even upon written charges, that attorneys in different parts of the country have committed murder, burglary, forgery, larceny, embezzlement, or some other public offence, they could be cited here to answer summarily as to such charges without being confronted by their accusers, without previous indictment, without trial by jury, and, of course, without the benefit of the presumptions of innocence which accompany every one until legally convicted. With what curious and wondering eyes would such proceedings be watched, when A. should be summoned from one part of the country on a charge of murder, B. from another part of the country on charge of burglary, C. from another part on a charge of larceny, D. from still another on a charge of having violated his marriage vows, and others on charges embracing different felonies! Such proceedings would be scandalous, and would shock every one who regards with favor the guarantees of personal rights in the Constitution. They would not and ought not to be tolerated by the country; and yet how would they differ from the case before us? It is no excuse to say that the punishment inflicted upon the petitioner is not that prescribed by the law for the public offence charged, and that it is only the latter which requires previous presentment or indictment. The Constitution declares that "no person shall be held to answer" for any infamous offence—that is to explain and justify his conduct upon such a charge—except when made by the presentment or indictment of a grand jury, without reference to the punishment that may follow on its being established. That instrument looks to the substance of things, and not to mere forms. Its purpose is to protect every one against wanton complaints of the commission of a public offence. It therefore confides the power of accusation for such an offence to a specially constituted body; and interdicts all trial, and, of course, all punishment, except upon its formal presentation. This interdict would be of little protection if it could be evaded by a mere change in the extent or nature of the punishment. In the test oath case from Missouri we have an illustration of an attempt to evade a constitutional inhibition, and of its futility. That State had in 1865 adopted a new constitution, which prescribed an oath to be taken by persons filling certain offices and trusts and pursuing various vocations within its limits. They were required to deny that they had done certain things, or by act or word had manifested certain desires and sympathies. The oath, divided into its separate parts, embraced 30 distinct affirmations respecting the past conduct of the affiant, extending even to his words, desires, and sympathies. Every person unable to take this oath was declared by the constitution incapable of holding in the state "any office of honor, trust, or profit under its authority, or of being an officer, councilman, director, or trustee, or other manager of any corporation, public or private, now existing or hereafter established by its authority, or of acting as a professor or teacher in any educational institution, or in any common or other school, or of holding any real estate or other property in trust for the use of any church, religious society, or congregation." And every person, at the time the constitution took effect, holding any of the offices, trusts, or positions mentioned, was required, within 60 days thereafter, to take the oath; and, if he failed to comply with this requirement, it was declared that his office, trust, or position should ipso facto become vacant. No person, after the expiration of the 60 days, was permitted, without taking the oath, "to practice as an attorney or counsellor at law," nor after that period could "any person be competent, as a bishop, priest, deacon, minister, elder, or other clergyman, of any religious persuasion, sect, or denomination, to teach, or preach, or solemnize marriages." Fine and imprisonment were prescribed as a punishment for holding or exercising any of "the offices, positions, trusts, professions, or functions" specified, without having taken the oath; and false swearing or affirmation in taking it was declared to be perjury, punishable by imprisonment in the penitentiary. A priest of the Roman Catholic Church was indicted in a Circuit Court of Missouri and convicted of the crime of teaching and preaching as a priest and minister of that religious denomination without having first taken the oath, and was sentenced to pay a fine of $500, and to be committed to jail until the same was paid. On appeal to the Supreme Court of the State the judgment was affirmed, and the case was brought on error to this court. It was plain that if the power existed in the State to exact from parties this oath respecting their past conduct, desires, and sympathies, as a condition of their being permitted to continue in their vocations, or to hold certain trusts, it might be used, and, on occasions of excitement to which all communities are subject, would be used, to their oppression and even ruin. The State might require such oath for any period of their past lives, might call upon them to affirm whether they had observed the Ten Commandments, or had discharged any particular civil or moral duty, or had entertained any particular sentiments, or desires, or sympathies, as a condition of their being allowed to engage in one of the ordinary pursuits of life, in a profession, trade, or business. It might impose conditions which individuals and whole classes in the community would be unable to comply with, and thus deprive them of civil and political rights. Under this form of legislation no oppression can be named which might not have been effected. A large portion of the people of Missouri were unable to take the oath. It was, therefore, contended that the clauses of its Constitution which required priests and clergymen to take and subscribe the oath as a condition of their being allowed to continue in the exercise of their professions, and preach and teach, operated upon those who could not take it as a bill of attainder within the meaning of the provision of the Federal Constitution prohibiting the States from passing bills of that character. With respect to them the clauses amounted to a legislative deprivation of their rights. It was also contended that in thus depriving priests and clergymen of the right to preach and teach, the clauses imposed a penalty for some acts which were innocent at the time they were committed, and increased the penalty for other acts which at the time constituted public offences, and in both particulars violated the provision of the Federal Constitution prohibiting the passage by the States of an ex post facto law. On the other hand, it was contended that the provisions of the Constitution of Missouri exacting the oath mentioned, merely prescribed conditions upon which members of the political body might exercise their various callings; that bills of pains and penalties, which are included under the head of bills of attainder, and ex post facto laws, are such as relate exclusively to crimes and their punishments; that they are in terms acts defining and punishing crimes and designating the persons to be affected by them, and do not bear any resemblance to the provisions of the Constitution of Missouri. There was much force in the objections thus urged to the position that the clauses in the Missouri Constitution constituted a bill of attainder and an ex post facto law; and had the court looked to the form rather than to the substance of things, they must have prevailed. But the court did not thus limit its view. It regarded the constitutional guarantees as applying wherever private rights were to be protected against legislative deprivation, whatever the form of the legislation. And it could not perceive any substantial difference between legislation imposing upon parties impossible conditions as to past conduct for the enjoyment of existing rights, and legislation in terms depriving them of such rights, or imposing as a punishment for past conduct the forfeiture of those rights. It therefore adjudged the clauses of the Missouri Constitution in question to be invalid on both grounds urged, as a bill of attainder and an ex post facto law. They accomplished precisely what the most formal enactments of that nature would have done, and were, therefore, in like manner prohibited. "The legal result," said the court, "must be the same, for what cannot be done directly cannot be done indirectly. The constitution deals with substance, not shadows. Its inhibition was levelled at the thing, not the name. It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any form, however disguised. If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding." I have been thus particular in the statement of the Cummings Case, for it seems to me that the rule of construction there applied should be extended so as to protect the citizen from answering in any form, or being punished in any way, for an infamous offence, except, as the Constitution prescribes, on a presentment or indictment of a grand jury. Here, under the form of a civil proceeding, a party is summoned to answer, and is punished for an alleged criminal offence, to try which the Circuit Court has confessedly no jurisdiction, and which is in no way connected with his professional conduct. The protection of the Constitution should not be thus lost, though the punishment be not one prescribed by statute, but one resting in the discretion of the court. I know, of course, that this court has, with the exception of two of its members, been entirely changed in its personnel since the Cummings Case was decided. I am the only living member of the majority of the court which, 16 years ago, gave that judgment. I would fain hope, however, that this change may not lead to a change in the construction of clauses in the Constitution intended for the protection of personal rights, even though its present members, if then judges, might not have assented to the decision, and however much they may be disposed to follow their own peculiar views where rights of property only are involved. I am of opinion that all the guarantees of the Constitution designed to secure private rights, whether of person or property, should be broadly and liberally interpreted so as to meet and protect against every form of oppression at which they were aimed, however disguised and in whatever shape presented. They ought not to be emasculated and their protective force and energy frittered away and lost by a construction which will leave only the dead letter for our regard when the living spirit is gone. What, then, are the relations between attorneys and counsellors-at-law and the courts; and what is the power which the latter possess over them; and under what circumstances can they be disbarred? There is much vagueness of thought on this subject in discussions of counsel and in opinions of courts. Doctrines are sometimes advanced upholding the most arbitrary power in the courts, utterly inconsistent with any manly independence of the bar. The books, unfortunately, contain numerous instances where, for slight offences, parties have been subjected to oppressive fines, or deprived of their offices, and, consequently, of their means of livelihood, in the most arbitrary and tyrannical manner. The power to punish for contempt—a power necessarily incident to all courts for the preservation of order and decorum in their presence—was formerly so often abused for the purpose of gratifying personal dislikes, as to cause general complaint, and lead to legislation defining the power and designating the cases in which it might be exercised. The act of Congress of March 2, 1831, c. 99, limits the power of the courts of the United States in this respect to three classes of cases: first, where there has been misbehavior of a person in the presence of the court or so near thereto as to obstruct the administration of justice; second, where there has been misbehavior of any officer of the court in his official transactions; and, third, where there has been disobedience or resistance by any officer, party, juror, witness, or other person to any lawful writ, process, order, rule, decree, or command of the court. The power, as thus seen,—so far as the punishment of contempts is concerned,—can only be exercised by the courts of the United States to insure order and decorum in their presence; faithfulness on the part of their officers in their official transactions; and obedience to their lawful orders, judgments, and process. Ex parte Robinson, 19 Wall. 511. The power to disbar attorneys in proper cases, though not, perhaps, affected by this law, is not to be exercised arbitrarily or tyrannically. Under our institutions arbitrary power over another's lawful pursuits is not vested in any man nor in any tribunal. It is odious wherever exhibited, and nowhere does it appear more so than when exercised by a judicial officer toward a member of the bar practising before him. Attorneys and counsellors-at-law—and the two characters are in this country generally united in the the same person—are officers of the court, admitted to be such by its order upon evidence that they possess sufficient learning to advise as to the legal rights of parties, and to conduct proceedings in the courts for their prosecution or defence, and that they have such fair private characters as to insure fidelity to the interests intrusted to their care. The order of admission, as said in the Garland Case, is the judgment of the court that they possess the requisite qualifications of learning and character, and are entitled to appear as attorneys and counsellors, and to conduct causes therein. Thenceforth they are responsible to the court for professional misconduct, and entitled to hold their offices during good behavior. 4 Wall. 333, 387. Their office, as was also said in the same case, is not held as a matter of grace and favor. The right which it confers is something more than a mere license, revocable at the pleasure of the court. It is a right of which they can be deprived only by its judgment for moral or professional delinquency. The oath which every attorney and counsellor is required to take on his admission briefly expresses his duties. It is substantially this: that he will support the Constitution of the United States, and "conduct himself as an attorney and counsellor of the court uprightly and according to law." This implies not only obedience to the Cconstitution and laws, but that he will, to the best of his ability, advise his clients as to their legal rights, and will discharge with scrupulous fidelity the duties intrusted to him; that he will at all times maintain the respect due to the courts and judicial officers; that he will conform to the rules prescribed by them for his conduct in the management of causes; that he will never attempt to mislead them by artifice or any false statement of fact or intentional misstatement of the law, and will never employ any means for the advancement of the causes confided to him, except such as are consistent with truth and honor. So long as he carries out these requirements of his oath he will come within the rule of "good behavior," and no complaint of his professional standing can be made. The authority which the court holds over him and the exercise of his profession extends so far, and so far only, as to insure a compliance with these requirements. It is for a disregard of them, therefore, that is, for professional delinquency and the loss of character for integrity and trustworthiness; that is, for moral delinquency, which a disregard of them manifests, that the court will summarily act upon his office and disbar him. In other words, the summary jurisdiction of the court in this respect will only be exercised: first, for misconduct of the attorney in cases and matters in which he had been employed or consulted professionally, or matters in which, from their nature, it must be presumed he was employed by reason of his professional character; and, second, for such misconduct outside of his profession as shows the want of that integrity and trustworthiness which is essential to insure fidelity to interests intrusted to him professionally. The commission of a felony or a misdemeanor involving moral turpitude is of itself the strongest proof of such misconduct as will justify an expulsion from the bar; but the only evidence which the court can receive of the commission of the offence, when it is not admitted by the party, is a record of his conviction. Of this I shall presently speak. When the charge against the attorney is of misconduct in his office, and that involves, as it sometimes may, the commission of a public offence, for which he may be prosecuted criminally, the inquiry should proceed only so far as to determine the question of professional delinquency, and he should be left to the proper tribunals for the punishment of the crime committed. And on such an inquiry no answer will be required of him which would tend to his crimination. Thus, to illustrate, if he has collected money for his client, and has not paid it over, the court, upon appropriate complaint, will order him to be cited to show cause why he should not pay it. If, upon the citation, a sufficient reason is not given for the retention of the money, the court will enter an order directing him to pay it immediately or by a day designated. Should he still refuse, he may then be disbarred for disobedience to the order and for the professional delinquency thereby involved; but for the offence of embezzlement or other crime, committed in the retention of the money, he will be turned over to the criminal courts. Or, take the case suggested on the argument: should an attorney, in the course of a trial, get into a personal collision with the opposing counsel or with a witness, and assault him with a deadly weapon, or kill him, the court would undoubetedly require the offender to show cause why he should not be expelled from the bar for the violence, disturbance, and breach of the peace committed in its presence. It would be sufficient to justify expulsion that he had so far forgotten the proprieties of the place and the respect due to the court as to engage in a violent assault in its presence. But for the trial of the offence of committing a deadly assault, or for the homicide, he would be turned over to the criminal courts. Or, take another case mentioned on the argument,—where an attorney has presented a false affidavit, or represented as genuine a fictitious paper. The use of such documents, knowing their character, is a fraud upon the court, an attempt to deceive it, and constitutes such professional misconduct as to justify the imposition of a heavy fine upon him or his temporary suspension or expulsion from the bar, without reference to the materiality of the contents of the false affidavit or of the fictitious paper; but for the crimes involved in their use he should be sent to the proper tribunals, because he cannot be tried therefor, on a motion to punish him for a contempt or to disbar him. It is because of this limitation upon the extent of judicial inquiry into such matters that a proceeding for purely professional misconduct against an attorney may be taken in any way which will sufficiently apprise him of the grounds upon which it is founded, and afford him an opportunity to be heard. It is not as thus limited a criminal proceeding in any proper sense, requiring full and formal allegations with the precision of an indictment. As said in Randall v. Brigham, where a letter of a party defrauded, laid before a grand jury and communicated by its direction to the court, was the foundation of proceedings against an attorney: "Such proceedings are often instituted upon information developed in the progress of a cause, or from what the court learns of the conduct of the attorney from its own observation. Sometimes they are moved by third parties upon affidavit; and sometimes they are taken by the court upon its own motion. All that is requisite to their validity is that when not taken for matters occurring in open court, in the presence of the judges, notice shall be given to the attorney of the charges made, and opportunity afforded him for explanation and defence. The manner in which the proceeding shall be conducted, so that it be without oppression or unfairness, is a matter of judicial regulation." 7 Wall. 523, 540. The objection here is that this recognized limitation upon judicial inquiry in such cases is exceeded, and the civil proceeding is made the means of inflicting punishment for a criminal offence in no way connected with the party's professional conduct. When the proceeding to disbar an attorney is taken for misconduct outside of his profession the inquiry should be confined to such matters, not constituting indictable offences, as may show him unfit to be a member of the bar; that is, as not possessing that integrity and trustworthiness which will insure fidelity to the interests intrusted to him professionally, and to the inspection of any record of conviction against him for a felony or a misdemeanor involving moral turpitude. It is not for every moral offence which may leave a stain upon character that courts can summon an attorney to account. Many persons, eminent at the bar, have been chargeable with moral delinquencies which were justly a cause of reproach to them; some have been frequenters of the gaming table; some have been dissolute in their habits; some have been indifferent to their pecuniary obligations; some have wasted estates in riotous living; some have been engaged in broils and quarrels disturbing the public peace; but for none of these things could the court interfere and summon the attorney to answer, and, if his conduct should not be satisfactorily explained, proceed to disbar him. It is only for that moral delinquency which consists in a want of integrity and trustworthiness, and renders him an unsafe person to manage the legal business of others, that the courts can interfere and summon him before them. He is disbarred in such case for the protection both of the court and of the public. A conviction of a felony or a misdemeanor involving moral turpitude implies the absence of qualities which fit one for an office of trust, where the rights and property of others are concerned. The record of conviction is conclusive evidence on this point. Such conviction, as already said, can follow only a regular trial upon the presentment or indictment of a grand jury. It cannot follow from any proceeding of the court on a motion to disbar, for the reason already given, that no one can be required to answer for such an offence except in one way. If a party indicted is, upon trial, acquitted, the court cannot proceed to retry him for the offence upon such a motion. He may answer, after acquittal, that he never committed the offence, and that no tribunal can take any legal proceeding against him on the assumption that he had been wrongfully acquitted. And what the court cannot do after acquittal it cannot do by such a proceeding before trial. If the court, after acquittal, can still proceed for the alleged offence, as a majority of my brethren declare it may, and call upon him to show that he is not guilty or be disbarred, there is a defect in our Constitution and laws which has, up to this day, remained undiscovered. Hitherto it has always been supposed that the record of acquittal of a public offence, after a trial by a jury, was conclusive evidence, at all times and in all places, of the party's innocence. This doctrine, until to-day, has been supposed to be immovably embedded in our jurisprudence. There are many cases in the books where the view I have taken of the authority of the court over attorneys and counsellors-at-law is recognized and acted upon. In a case in the Supreme Court of New Jersey, 2 Hals. (N.J.) 162, given in the reported without a name, out of respect to the friends of the party implicated, an application was made on behalf of members of the bar for a rule that a certain attorney show cause why his name should not be stricken from the rolls, upon an allegation that he had been guilty of larceny. The moving party stated in his application that it was a matter of notoriety that the attorney had purloined books, to a considerable amount, from persons who were at the time in court and ready, when called upon, to substantiate the charge. The counsel, therefore, on behalf of members of the bar, called upon the court to relieve them from the reproach of having the man attached to their profession, and from the disgrace of being compelled, in their professional duties, to have intercourse with one with whom they would be ashamed to associate in private life; and that the court had undoubtedly the power to grant the rule, for, as it was essential to the admission of an attorney that he should be of good moral character, it must be equally essential that he should continue to be such. But the chief justice said: "The offence of which it is alleged this man has been guilty is neither a contempt of court nor does it fall within the denomination of malpractice. It would appear to me, therefore, that he must be first convicted of the crime by a jury of his countrymen before we can proceed against him for such an offence; for, suppose he should be brought to the bar and should say he was not gulity, we could not try the fact." The case was then taken under advisement, and at a subsequent day the court said, speaking by the Chief Justice: "We have reflected upon this case and do not see how we can do anything in it, because the court seems to be confined to cases of malpractice or to crimes which are in the nature of crimen falsi, and of which there has been a conviction." "An attorney may be struck off the roll, first, for a breach of the rules of the court; second, for breach of any of his official duties; third, for all such crimes and misdemeanors as affect his moral character. But in this third class of cases we cannot proceed in the ordinary way; there ought always to be a previous conviction before this court can interfere. All the cases cited sanction this distinction, except the case from the District of Columbia, which is anomolous." The rule was, therefore, refused. 2 Halst. Law, 197. In Ex parte Steinman and Hensel, 95 Pa. St. 220, the parties, members of the bar of Lancaster County, in Pennsylvania, were editors of a newspaper published in the county. In one of its numbers an article appeared which charged that the judge of the Court of Quarter Sessions of the county had decided a case wrongfully from motives of political partisanship. The court thereupon sent for the parties, and on their appearance they admitted that they were editors of the paper, and that as such they were responsible for the publication. The court then entered a rule upon them to show cause why they should not be disbarred and their names stricken from the roll of attorneys for misbehavior in their offices. To this rule they answered, setting up, among other things, that if the charge was that they had published a libelous article, it was that they had committed an indictable offence, not in the presence of the court, or while acting as its officers, and therefore could not be called upon to answer the rule until they should have been tried and convicted, according to law, for the offence; and that the court was not competent to determine in that form of proceeding that they did unlawfully and maliciously publish, out of court, a libel upon the court, and to hear and determine disputed questions of fact involving the motives of the parties and the official conduct of the court. The rule, however, was made absolute, and the names of the parties were ordered to be stricken from the roll of attorneys. They then took the case on writ of error to the Supreme Court of the State, where the judgment was reversed, and it was ordered that the parties be restored to the bar. Chief Justice SHARSWOOD, in delivering the opinion of the court, said: "No question can be made of the power of a court to strike a member of the bar from the roll for official misconduct in or out of court. By the seventy-third section of the act of April 14, 1834, it is expressly enacted that 'if any attorney-at-law shall misbehave himself in his office of attorney he shall be liable to suspension, removal from office, or to such other penalties as have heretofore been allowed in such cases by the laws of this Commonwealth.' We do not mean to say—for the case does not call for such an opinion—that there may not be cases of misconduct not strictly professional which would clearly show a person not to be fit to be an attorney, nor fit to associate with honest men. Thus, if he was proved to be a thief, a forger, a perjurer, or guilty of other offences of the crimen falsi. But no one, we suppose, will contend that for such an offence he can be summarily convicted and disbarred by the court without a formal indictment, trial, and conviction by a jury, or upon confession in open court. Whether a libel is an offence of such a character may be a question, but certain it is that if the libel in this case had been upon a private individual, or upon a public officer, such even as the district attorney, the court could not have summarily convicted the defendants and disbarred them." A similar doctrine obtains in the courts of England. Thus, in a case in 5 Barn. & Adol. 1088, the Solicitor-General of England moved the Court of King's Bench for a rule calling on two attorneys of the court to show a cause why they should not be struck off the roll, on affidavits charging them with professional misconduct in certain pecuniary transactions. Lord DENMAN, the Chief Justice, replied: "The facts stated amount to an indictable offence. Is it not more satisfactory that the case should go to a trial? I have known applications of this kind, after conviction, upon charges involving professional misconduct; but we should be cautious of putting parties in a situation where, by answering, they might furnish a case against themselves, on an indictment to be afterwards preferred. On an application calling upon an attorney to answer the matters of an affidavit, it is not usual to grant the rule if an indictable offence is charged." The court, however, desired the Solicitor-General to see if any precedent could be found of such an application having been granted. The Solicitor-General afterwards stated that he had been unable to find any, and the rule was discharged. My brethren are mistaken in supposing that in this case the attorneys were required to answer under oath the charges made. In re ______, 3 Nev. & P. 389, a motion was made to the Court of Queen's Bench to strike an attorney off the roll on an affidavit alleging a distinct case of perjury by him. The attorney had sworn to the sum of £374 as the expenses of witnesses, which was reduced before the master to £47. It was contended that the court could exercise its summary jurisdiction on the ground of the perjury. But the Chief Justice replied: "Would not an indictment for perjury lie upon these facts? We are not in the habit of interposing in such a case, unless there is something amounting to an admission on the part of the attorney which would render the interposition of a jury unnecessary." The moving counsel answered that there was enough in the affidavit to show a distinct case of perjury, but that there was no admission. The rule was, therefore, refused. To the same purport are numerous other adjudications, and their force is not weakened by the circumstance that it is also held that it is no objection to the exercise of the summary jurisdiction of the court that the conduct constituting the delinquency, for which disbarment is moved, may subject the party to indictment. When such is the case he is not required to answer the affidavits charging the official delinquency, for no one can be compelled to criminate himself, and the court confines its inquiry strictly to such acts as are inconsistent with the attorney's duty in his profession. It looks only to the professional conduct of the attorney, and acts upon that. In Stephens v. Hill, which was before the Court of Exchequer, a distinction was drawn between the misconduct of an attorney outside of a proceeding in court which might subject him to an indictment, and such misconduct committed by him in a proceeding in court. For the former no motion to disbar would be entertained; for the latter the motion would be heard. There, an attorney for the defendants had persuaded a material witness for the plaintiff to absent himself from the trial of the cause, and had undertaken to indemnify him for any damage he might sustain for so doing. Upon affidavits disclosing this matter, application was made to disbar the attorney. It was objected that the court would not exercise its summary jurisdiction when the misconduct charged amounts to an indictable offence, as was the conspiracy in which the attorney was engaged. But the Chief Baron, Lord ABINGER, answered that he never understood that an attorney might not be struck off the roll for misconduct in a cause in which he was an attorney merely because the offence imputed to him was of such a nature that he might have been indicted for it; that so long as he had been in Westminster Hall he had never heard of such a rule, though the court would not require the attorney to answer the affidavits. 'If, indeed,' said the chief baron, speaking for the court, 'a case should occur where an attorney has been guilty of some professional misconduct, for which the court, by its summary jurisdiction, might compel him to do justice, and, at the same time, has been guilty of something indictable in itself, but not arising out of the cause, the court would not inquire into that with a view of striking him off the roll, but would leave the party aggrieved to his remedy by a criminal prosecution.' And, again: 'Where, indeed, the attorney is indicted for some matter not connected with the practice of his profession of an attorney, that, also, is a ground for striking him off the roll, although in that case it cannot be done until after conviction by a jury.' 10 Mee. & W. 28, 31, 32, 33. The conduct of the attorney in that case tended to defeat the administration of justice, and was grossly dishonorable. He had employed, for the success of his cause, means inconsistent with truth and honor. He was, therefore, rightly disbarred, without reference to his liability to a criminal prosecution for his conduct. There is no case I have been able to find, after a somewhat extended examination of the reports, where, for an indictable offence, wholly distinct from the attorney's professional conduct, the commission of which was not admitted, he has been compelled, in advance of trial and conviction, to show cause why he should not be disbarred, except one in Tennessee for accepting a challenge to fight a duel and killing his antagonist. Smith v. The State Tennessee, 1 Yerg. 228. This case is exceptional, and finds no support in the decisions of the courts of other states. There is no case at all like the one at bar to be found in the reports of the courts of England or of any of the states of the Union. In the numerous cases cited in the opinion of my brethren, the matter which was the subject of complaint, and the ground of the action of the court, related to the conduct of the party in his professional business or in business connected with, or growing out of, his profession. Thus, the advertisement of an attorney that he could procure divorces for causes not known to the law, without publicity, or reference to the parties' residence; colluding with a wife to manufacture evidence to procure a divorce; the misapplication by him of funds collected; his bribery of witnesses, hiring them to keep out of the way, or to disregard a subpoena; his falsely personating another in legal proceedings; instituting suits without authority; knowingly taking insufficient security; forging an affidavit to change a venue; substituting the name of his client for his own in an affidavit to procure alimony; altering a letter to a judge in order to secure the allowance of bail; attempting to make an opposing attorney drunk, in order to obtain an advantage of him on the trial of a cause; obtaining money from a client by false representations respecting the latter's title to lands, and advances for taxes; and many other like matters, which operated as a fraud upon the court and tended to deceive it, and were inconsistent with professional honor and integrity, were very properly considered as sufficient grounds for temporary suspension or absolute expulsion from the bar. And in this class of cases we sometimes find objections were taken that the offences charged subjected the attorney to liability for indictment, and for that reason should not be considered; and it was in answer to such objections that language was used which apparently conflicts with the views I have expressed, but not really so when read in connection with the facts. In those cases the conduct of the attorney, even when furnishing ground for indictment, was, independently of its criminal character, open to consideration on a motion to disbar, so far as it affected him professionally; and so it was said that it was no objection to such consideration that he might have been also indicted for the offence committed—language which can have no application where the offence, as in this case, had no connection with the party's professional conduct. In illustration of this statement I will make a brief reference to some of the cases cited by my brethren, and upon which they seem chiefly to rely. That of Stephens v. Hill, in the court of exchequer, already explained, confirms what I have said. There, while holding that the fact that the matter complained of might subject the attorney to an indictment would not prevent an inquiry into it, so far as it affected his professional conduct, Lord ABINGER takes particular pains to say, as appears from the quotation from his opinion which I have given, that where the matter is not connected with the practice of the attorney's profession, though it might be ground for striking him from the roll, 'in that case it cannot be done until after conviction by a jury.' In the Matter of Francis Blake, 3 El. & El. 34, the court held that its summary jurisdiction over its attorneys is not limited to cases in which they have been guilty of misconduct, such as amounts to an indictable offence, or arises in the ordinary course of their professional practice, but extends to all cases of gross misconduct on their part, in any matter in which they may, from its nature, be fairly presumed to have been employed in consequence of their professional character. In that case money had been lent to an attorney, previously known and employed as such, upon his note, and a deed of assignment of a mortgage on an estate in Ireland, by which a greater amount was secured to him. The estate getting into the Irish Encumbered Estates court, the attorney borrowed the deed from his creditor for the purpose, as alleged, of supporting his claim in that court, but in reality in order to obtain the payment of the amount secured to him. Having established his right to that payment, he returned the deed to the creditor, and afterwards received the whole amount secured, and appropriated it to his own use. It is with reference to these facts that Chief Justice COCKBURN uses the language quoted by my brethren. He said that although Blake applied to the lender in the first instance as an attorney, he thought the transaction had ultimately resolved itself into a mere loan between them as individuals. But the transaction had evidently grown out of their former relation as attorney and client. Mr. Justice CROMPTON, in concurring with the Chief Justice, said: 'In the present case, I cannot say that Blake's fraud was not committed in a matter connected with his professional character. If he did not act in it as an attorney, he at all events took advantage of his professional position to deceive Beevirs' (the lender.) In Re Hill, L. R. 3 Q. B. 543, an attorney, acting as a clerk to a firm of attorneys, in completing the sale of certain property, received the balance of the purchase-money and appropriated it to his own use. On affidavits stating the facts, a motion was made to strike him off the rolls. He admitted the misappropriation and was accordingly suspended for twelve months. Said Chief Justice COCKBURN: In this case, if the delinquent had been proceeded against criminally upon the facts admitted by him, it is plain that he would have been convicted of embezzlement, and upon that conviction being brought before us, we should have been bound to act. If there had been a conflict of evidence upon the affidavits, that might be a very sufficient reason why the court should not interfere until the conviction had taken place; but here we have the person against whom the application is made admitting the facts. It is difficult to see the pertinency of this decision to the position taken by my brethren. These two cases are, in the language used, the strongest to be found in the reports on that side; but their facts give it no strength whatever. In Penobscot Bar v. Kimball, 64 Me. 140, the attorney had been convicted of forging a deposition, used by him in a suit against his wife for a divorce; and, though pardoned for the crime, the fraud upon the court remained, and for that and for other disreputable practices and professional misconduct, rendering him 'unfit and unsafe to be intrusted with the powers, duties, and responsibilities of the legal profession,' he was disbarred. In Delano's Case, 58 N. H. 5, where an attorney was disbarred by the Supreme Court of New Hampshire for wrongfully appropriating to his own use money of a town received by him as a collector of taxes, the commission of the offence was admitted. This is evident from the statement of the court in its opinion that he and his wife and family did what they could to make good the loss to the town, but with only partial success. In Perry v. The State, 3 Greene, 550, the false swearing charged as one of the grounds of complaint against the attorney was committed in a cause managed by him, in which he voluntarily appeared as a witness, thus practicing a fraud upon the court by employing to sustain his cause means inconsistent with truth and honor. In Ex parte Walls, 64 Ind. 461, the attorney had forged an affidavit to obtain a change of venue, and had thus grossly imposed upon the court. For this imposition, independently of the crime committed, he was properly disbarred. In Ex parte Burr, 2 Cranch, C. C. 380, the charges against the attorney were for malpractice in his profession, in advising a person in jail, who was either a recognized witness or a defendant for whom some person was special bail, to run away; instituting suits against parties, and appearing for parties without authority; bringing vexatious and frivolous suits, many of them for persons utterly insolvent; purchasing a lot at a trustee's sale of an insolvent's estate under unfair circumstances; making fictitious claims and bringing suits with a view to extort money; and taking a bill of sale from one about to be distrained for rent to prevent such distress. These charges having been sustained, the attorney was rightly suspended from practice for one year. In Re Percy, 36 N. Y. 651, there were several charges against the attorney, such as that his general reputation was bad; that he had been several times indicted for perjury, one or more of which indictments were pending; that he was a common mover and maintainer of suits on slight and frivolous pretexts; and that his personal and professional reputation had been otherwise impeached in a trial at the circuit. But the court appears to have based its action upon the character of the attorney as a vexatious mover of suits on frivolous grounds. He was crowding the calendar, said the court, 'with vast numbers of libel suits in his own favor, and in the habit of indicating additional libel suits upon the answers to those previously brought by him. In one instance, at least, he had sued his client in a Justice's Court, and, when beaten upon trial, instead of appealing from the judgment, he commenced numerous other suits against him in different forms for the same cause, when he must have known that the demand was barred by the first judgment rendered. The only inquiry is whether, in such a case, the court has the power to protect the public by preventing such persons from practicing as attorneys and counsellors in the courts of the state, and by that means harass its citizens. And the court held that it had the power under a special statute of the state authorizing the removal or suspension of attorneys and counsellors, when guilty of any deceit, malpractice, or misdemeanor; and that its power was not limited to cases where such deceit, malpractice, or misdemeanor were practiced or committed in the exercise of the profession only, but, under the statute, extended to cases where there was general bad character or misconduct. None of these cases, as is manifest from the statement I have made, covers that of an indictable offence, wholly distinct from the attorney's professional conduct. None of them countenances the extraordinary authority of the courts over attorneys and counselors asserted by my brethren. And, indeed, if the law be that a Circuit Court of the United States, upon whisperings in the ear of one of its judges on the streets, or upon information derived from rumor, or in some other irregular way, that an attorney has committed a public offence, having no relation to the discharge of his professional duties, can summon him to answer for the offence in advance of trial or conviction and summarily punish him, it is time the law was changed by statute. Such a power cannot be safely intrusted to any tribunal. It might be exercised under the excitement of passion and prejudice, as the records of courts abundantly show. Its maintenance would tend to repress all independence on the part of the bar. Men of high honor would hesitate to join a profession in which their conduct might be subjected to investigation, censure, and punishment from imputations and charges thus secretly made. Seeing that this must be the inevitable result of such an unlimited power of the court over its attorneys, my brethren are careful to express the opinion that it should seldom be exercised, when the offence charged against the attorney is indictable, until after trial and conviction, unless its commission is admitted. But the possession of the power being conceded, and its exercise being discretionary, there is in the hands of an unscrupulous, vindictive, or passionate judge, means of oppression and cruelty which should not be allowed in any free government. To disbar an attorney is to inflict upon him a punishment of the severest character. He is admitted to the bar only after years of study. The profession may be to him the source of great emolument. If possessed of fair learning and ability he may reasonably expect to receive from his practice an income of several thousand dollars a year—equal to that derived from a capital of one or more hundred thousand dollars. To disbar him having such a practice is equivalent to depriving him of this capital. It would often entail poverty upon himself and destitution upon his family. Surely the tremendous power of inflicting such a punishment should never be permitted to be exercised unless absolutely necessary to protect the court and the public from one shown by the clearest legal proof to be unfit to be a member of an honorable profession. To disbar an attorney for an indictable offence not connected with his professional conduct, before trial and conviction, is also to inflict an additional wrong upon him. It is to give the moral weight of the court's judgment against him upon the trial on an indictment for that offence. I am of opinion, therefore, that the prayer of the petitioner should be granted, and a peremptory mandamus directed to the Circuit Court to vacate the order of expulsion and restore him to the bar. The writ is the appropriate remedy in a case where the court below, in disbarring an attorney, has exceeded its jurisdiction. Ex parte Bradley, 7 Wall. 364; Ex parte Robinson, 19 Wall. Id. 505 506.
106.US.586	Under the act of March 3, 1875, c. 137, the Circuit Court should dismiss a suit where the name of the complainant who has no real interest in the subjectmatter thereof, has been improperly and collusively used for the purpose of creating a case cognizable there.	This is a case which the circuit court should have dismissed under the fifth section of the act of March 3, 1875, concerning the jurisdiction of the circuit courts of the United States, instead of granting the relief prayed by complainant. It is charged in the bill that Hayden, the appellee, while acting as the attorney of Rachel Dove and Bethuel Dove, her husband, purchased under execution a valuable tract of land belonging to Rachel; that he had defended the suit for foreclosure of a mortgage on the property for the Doves, in which a decree was rendered under which it was sold. It is set out with sufficient fullness that at this sale he bought the land at less than its value, under circumstances which should subject the title which he acquired to the character of a trust for the benefit of Mrs. Dove. It is not necessary now to inquire into the truth of that allegation, on which the circuit court rendered a decree in favor of Manning, the complainant in the suit, because we are of opinion that Manning had no such interest in the matter as to anable him to sustain a suit in the circuit court of the United States in regard to it. The sale to Hayden was made March 5, 1864, and he received the sheriff's deed April 26th thereafter. On the seventh day of April, 1875, Rachel and Bethuel Dove conveyed the land to Manning, who brought the present suit May 12, 1876. It appears in evidence that not long after the sheriff's deed was made to him, Hayden took possession of the land, and has retained it ever since, though it is said he obtained the possession unfairly. In April, 1874, Rachel Dove began a suit in the state court of Polk county, where the land was situated, against Hayden to recover these premises, and the court decided against her on demurrer. From this decision she took an appeal to the supreme court of the state, which was dismissed by her, as was the suit in the Polk county circuit court. In April, 1875, and while this suit was pending in some stage of it, the conveyance was made to Manning of the land in question. Manning was the husband of the daughter of the Doves, and resided in California, and had the citizenship necessary to enable him to renew the litigation in the circuit court of the United States. The deed purports to be one of bargain and sale for the consideration of $5,000, but no money was ever paid on it. No note or other obligation was given, nor any mortgage, as security for the debt. It does not appear that Manning ever promised to pay anything for it. Mrs. Dove's account of the transaction is this: 'My daughter Elizabeth is the wife of Charles Manning, the plaintiff. Manning never has paid me any money on this land, but he was going to. He never gave me his note. I can't say when I saw Manning last. I think eight years ago. Manning wrote first about having the land conveyed to him; said he would take the matter off our hands. I have not the letter with me.' Mr. Dove says he don't know whether any part of the $5,000 has been paid, either from his own knowledge or from his wife. Manning's deposition was not taken in the case, nor is any word, verbal or in writing, produced as coming from him in regard to this suit. The bill, which is filed in his name, is neither signed nor sworn to by him. Mr. Dove swears that he is the agent and attorney in fact of Manning, and as such he verifies the bill. The defendant, who is called upon to make full and perfect answer, does so under oath, and denies that Manning was in good faith the lawful owner of the land. No bond for costs was given by Manning, or any one for him. Mr. Dove, in swearing to the bill of costs of about $3,00, does not say that plaintiff had paid any part of them, but that they were incurred in the suit. There is no evidence that the deed from Dove and wife to Manning was ever delivered to Manning, or was ever in his possession, and there is no reason to suppose it ever left Oregon, or that he had been in Oregon for years before and after its execution. Undoubtedly, Mrs. Dove and her husband could have given their interest in the property to their daughter, and a conveyance in consideration of natural love and affection might have been good. But this deed was not made to her, nor on any such consideration, but recites a consideration of $5,000 in money, while it clearly appears that no money was paid, none was secured by note or mortgage, and none was promised or intended to be paid. 'Manning wrote to me,' says Mrs. Dove, 'about having the land conveyed to him; said he would take the matter off our hands.' What matter? Manifestly the litigation at that time going on. 'I will sue for you in my name. I can go into a court of the United States, where you can't go,' is what he meant. There is not a syllable in this record inconsistent with the idea that the deed was made to Manning without his knowledge, recorded in Oregon, and delivered to the lawyers who brought this suit, (the same who brought the suit in the state court,) without his authority and without any communication from in the record by which Manning this suit was a tort, there is no evidence inthe record by which Manning could be connected with it, or with any assertion of claim under the deed. It seems to us that Manning's name is used because he is a citizen of a different state from the defendant, for the sole benefit of Mrs. Dove; that he has no real interest in the controversy, and if cognizant of what is going on, of which there is much doubt, is passively permitting the use of his name for the benefit of the Doves in order to make a simulated case of jurisdiction in the federal court. This is precisely the case provided for in the act of 1875. The 'suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of the circuit court,' because the real controversy is wholly between citizens of the same state. 'The name of Manning, the plaintiff in the suit, has been improperly and collusively used (in the language of this statute) for the purpose of creating a case cognizable under it.' Hawes v. Oakland, 104 U. S. 450; Williams v. Township of Nottawa, 104 U. S. 209; Detroit v. Dean, ante, 560. The decree of the circuit court is reversed, and the case remanded with direction to dismiss the bill for want of jurisdiction, and without prejudice to any other action in a proper court.
108.US.566	A writ of mandamus cannot be used to bring up for review a judgment of a circuit court on a plea to the jurisdiction. Where a circuit court on demurrer vacated and quashed a writ of replevin for want of jurisdiction, it was a final judgment, and it was, if the case was otherwise within the court's jurisdiction, subject to review on a writ of error.	This petition shows that the Baltimore & Ohio Railroad Company brought an action of replevin against John E. Hamilton, in the circuit court of the United States for the eastern district of Virginia, to recover the possession of certain railroad cars; that a summons for the defendant and a writ of replevin for the property were issued in the suit; that the defendant, Hamilton, was duly served with the summons; that the property sued for was taken by the marshal under the writ of replevin and delivered to the company; that a declaration was filed, and that before pleading thereto Hamilton appeared and moved to vacate the writ of replevin because the court had no jurisdiction to issue the same. This motion was heard, and thereupon the court ordered and adjudged 'that said writ be quashed and vacated, and all proceedings subsequent to be of no avail;' and that the action 'be dismissed at at the costs of the plaintiff, for which execution may issue,' etc. This is a final judgment in the action, and, if the case is otherwise within our jurisdiction, subject to review here on a writ of error. Upon such a writ the question of the right to maintain the action on which the case was adjudged below, if presented by the record, may be re-examined here. This being so, a writ of mandamus cannot issue. It has been often held that mandamus cannot be used to perform the office of a writ of error. Ex parte Hoard, 105 U. S. 580; Ex parte Loring, 94 U. S. 419. In Ex parte Ry. Co. 103 U. S. 796, it was expressly decided that a writ of mandamus could not be used to bring up for review a judgment of the circuit court on a plea to the jurisdiction. That is practically what is asked in this case. The writ is denied.
107.US.361	1. The statute of Arkansas prescribing the manner in which property assigned for the benefit of creditors shall be sold is mandatory. 2. An assignment made in the State is void if it vests in the assignee a discretion in conflict with the provisions of that statute, and authorizes him in effect to sell such property in a manner which they do not permit.	The statute of Arkansas provides that the property assigned for the benefit of creditors shall be sold at public auction within 120 days after the execution of the bond required of the assignee. The deed of assignment in effect authorized the assignee to sell at private sale, and at such time and in such manner as he should deem advisable and right. Under this power he could wait an indefinite time, and then sell the property at wholesale, or he could carry on the business of selling off the stock of goods in the ordinary way of retail merchants, and without any limit of time within which the sale should be completed. The powers conferred by the deed of assignment were, therefore, in direct opposition to the policy of the statute. It is true, the powers conferred on the trustee were subject to the supervision of the creditors. But this could only mean a majority of the creditors. The assignee was, therefore, authorized by the assignment to dispose of the property assigned in a manner different from that pointed out by the statute, and in disregard of the wishes and remonstrances of a minority of the creditors. The question presented is, therefore, this: Is an assignment for the benefit of creditors, which authorizes the assignee to violate the provisions of the statute regulating such assignments, valid and binding on the creditors of the assignor? The contention of the appellant is that the assignment is valid, (1) because the discretion given the assignee by the assignment leaves him at liberty to follow the law; and (2) because, even if the assignment required him to administer the trust in a manner different from that prescribed by the law, only such directions as conflicted with the law would be void, and the assignment itself would remain valid. We think that under the construction given the assignment law by the supreme court of Arkansas, in the case of Raleigh v. Griffith, 37 Ark. 153, these positions cannot be maintained. The assignment in that case provided as follows: 'The party of the second part [the assignee] shall take possession of all and singular the property and effects hereby assigned, and sell and dispose of the same, either at public or private sale, to such person or persons, for such prices, and on such terms and conditions, either for cash or upon credit, as, in his judgment, may appear best and most for the interest of the parties on cerned, and convert the same into money.' It will be observed that the terms of the assignment did not prevent the assignee, in the administration of his trust, from following the directions of the statute in all particulars. He was at liberty to sell for cash at public auction, and within 120 days after the filing of his bond. But the assignment vested him with a discretion to do otherwise. The court declared the assignment to be void. It said: 'In providing for the sale of the property, the statute is disregarded in the deed of assignment; the assignee was authorized to sell at private or public sale, and for cash or credit. Under such provision it was in the power and discretion of the assignee to prolong the execution and closing of the trust for an indefinite period. The legislature deemed it expedient, as a matter of public policy, to require assignees, in general deeds of assignment for the benefit of creditors, to sell all property assigned to them, for the payment of debts, at public auction, within 125 days after the execution of the bond, on 30 days' notice of the time and place of sale.' And the court declared: 'The statute prescribes a mode of sale in this state, and dissenting creditors are not barred by a deed made in direct contravention of a plain provision of the statute.' The effect of this decision is that the provisions of the statute respecting the sale of property assigned for the benefit of creditors are mandatory and not directory, (see, also, French v. Edwards, 13 Wall. 506,) and there are no conflicting decisions of the supreme court of Arkansas. This being the construction put upon the law by the supreme court of the state when the assignment in this case was made, it is binding on the courts of the United States. Brashear v. West, 7 Pet. 608; Sumner v. Hicks, 2 Black, 532; Leffingwell v. Warren, Id. 599. It follows that the assignment, which vests the assignee with a discretion contrary to the mandates of the statute, and in effect authorizes him to sell the property conveyed thereby in a method not permitted by the statute, must be void, for contracts and conveyances in contravention of the terms of policy of a statute will not be sanctioned. Peck v. Barr, 10 N. Y. 294; McGregor v. S. E. R. Co. 18 Q. B. 615; Jackson v. Davison, 4 Barn. & Ald. 695; Miller v. Post, 1 Allen, 434; Parton v. Hervey, 1 Gray, 119; Hathaway v. Moran, 44 Me. 67. The result of these views is that the decree of the circuit court dismissing the bill, because the assignment in question was void on its face, was right, and must be affirmed.
108.US.522	The relation between the railroad company and the District respecting the maintenance and repair of the streets in the District through which the railroad passes considered and settled.	This is an appeal from a decree of the supreme court of the District of Columbia dismissing the bill of appellant. The questions presented by the appeal arise out of the execution of the act of congress of July 17, 1876, 'authorizing the repavement of Pennsylvania avenue.' That act created a commission, consisting of two officers of the engineer corps of the army, and the architect of the capitol, whose duty it was to contract for and superintend the work, and to decide upon the character of the material. It also declared in what proportion the expense of the work should be borne by the owners of property along the line of the avenue, namely, the United States, the District of Columbia, the private citizens, the Washington & Georgetown Railroad Company, whose track ran through the center of the avenue, and other railroad companies whose tracks crossed the street at several places. So much of this apportionment of expenses as relates to the appellant is in these words: 'Sec. 3. That the cost of laying down said pavement shall be paid for in the following proportions and manner: The Washington & Georgetown Railroad company shall bear all of the expenses for that portion of the work lying between the exterior rails of the tracks of the road, and for a distance of two feet from and exterior to the track on each side thereof, and of keeping the same in repair; but the said railroad company, having conformed to the grade established by the commissioners, may use cobblestone or Belgian rock in paving their tracks, or the space between their tracks, as the commissioners shall direct.' 19 St. at Large, 93. This is in strict conformity to the charter of the company, passed in 1862, the fourth section of which enacts—— 'That said corporation hereby created shall be bound to keep said tracks, and for the space of two feet beyond the outer rail thereof, and also the space between the tracks, at all times well paved and in good order, without expense to the United States, or to the cities of Georgetown and Washington.' The fifth section requires the company to conform their road to any change of the grade of the street; and the sixth, that the act may at any time be altered, amended, or repealed by congress. 12 St. at Large, 389. The act of 1876, under which the work of repaving was done, in section 4 provides 'that assessments shall be made by the commissioners of the District of Columbia upon the owners of said private property on said avenues and spaces and upon said railroad company respectively, provided in section 3 of this act,' and for the collection of the same by the collector of the District of Columbia. It is also enacted that, on failure of the railroad company or any private citizen to pay such assessment, the commissioners of the district shall issue certificates, bearing 10 per cent. interest, payable within one year, which are made a lien on the property, under which it may be sold at the end of the year, if not paid. The railroad company was assessed by the commissioners of the district in the sum of $19,886.69, whereas they charge that they are only liable for $12,207.27; and as the commissioners were about to issue a certificate for the larger amount, the company paid or tendered the sum which they acknowledged to be due, and filed their bill in chancery to obtain an injunction as to the remainder. This difference is owing to the fact that along-side of the exterior rails of the track the paving commissioners required a blue granite stone to be laid the whole length of the pavement, five inches in width and eight inches deep, and each stone about three feet long. This was charged wholly to the company, as well as the remainder of the two feet next adjoining said track on the outside of the rails. As regards this remainder the company make no objection, but they insist that the entire cost of all the paving on each side of their track to the sidewalk should be computed together, and the charge against the company should be in the proportion which those two feet bear to the entire distance from each exterior rail to the sidewalk. As this string of stone paving is more costly than the Neufchatel and Trinidad material, which constitute the main body of the pavement this would relieve the company of a part of the cost of the two feet adjacent to their track. As a matter of strict justice, no reason can be seen for this proposition, for it is quite clear that the requirement of this string or curb of blue granite is wholly due to the existence of the tracks of the railroad in the middle of the street, and is also mainly, if not wholly, for the protection of the track along-side of which it is laid. Nothing can be more just than that the company should pay for the work which its track alone makes necessary. Nor is there any question that if this stone was necessary, in laying down this new pavement, for the security and durability of the track itself, or of the pavement near the track, the company was bound, by the fourth section of its charter, to pay the expense. That it was a judicious and proper thing to be done is scarcely controverted, and if it were, the testimony shows very clearly that it was. The only question, therefore, that remains, is whether congress, in the distribution of the expense of this work of repaving the avenue, intended that this should be borne by the company. The language of congress on that subject would seem to admit of no other construction. The third section, already cited, says: 'The Washington & Georgetown Railroad Company shall bear all the expense for that portion of the work lying between the exterior rails of the tracks of the road, and for a distance of two feet from and exterior to the track on each side thereof, and of keeping the same in repair.' So far from relieving the company of the duty which it accepted by its charter, the language re-enforces that obligation and makes its application to the repavement clear. The statute goes on to prescribe what the United States shall pay, and what the District of Columbia shall pay, and what individual owners shall pay; and the proportions in which these parties are to be charged have no relation to the part to be paid for by the railroad company, which is, in no case, a proportionate part of the street along which it runs, but all the expense of the work inside its rails, and for two feet exterior to this on each side. There is no room for apportionment here, and if, for so much of this two feet as is of the same material as the main surface of the street, which is separated from it by no visible line, the easiest mode of ascertaining its cost is to calculate its relation to the remainder of the pavement, that is no reason why this extra and separable expense of blue stone should not be assessed, as the law requires, exclusively to the company. But it is said that the paving commissioners adopted the rule of a general apportionment of all the expense, and reported to the commissioners of the district on that basis, as due from the company, the smaller sum of $12,207.27, and that their report is conclusive. The report thus made is nowhere in the statute made their special duty, nor are they anywhere authorized to make the final assessment. The report was merely a suggestion of their views for the action of the district commissioners. On the other hand, by the express language of the act, these latter commissioners are directed to make the assessment on which the parties are to pay, and on which, if they do not pay, a certificate shall be issued which becomes an interest-bearing lien on their property. Another source of complaint is that in making the necessary excavations for the new pavement, it became necessary to support the track of the company by underpinning, which cost $1,052.12, and was paid for by the paving commissioners. This work was wholly for the benefit of the railroad company. It was to prevent the track from falling or caving in while used during the progress of the work, and the city authorities might have left the company to take care of itself. But as this might have delayed the work, or led to litigation, they wisely protected it while they worked. It seems to us a proper charge against the company alone, as they alone were benefited, and their track made it necessary. There is no error in the record, and the decree of the supreme court of the district is affirmed.
106.US.672	1. The assignee of a chose in action cannot proceed in equity to enforce, for his own use, the legal right of his assignors, merely upon the ground that he cannot maintain an action at law in his own name. So held, where the owner of letters-patent assigned them, together with all claims for damages by reason of the previous infringement of them, and the assignee filed his bill to recover such damages. 2. Root v. Railroad Company, 105 U. S. 189, cited and approved.	This appeal brings into review the decree of the circuit court sustaining a general demurrer to the amended bill of the complainant, and dismissing the bill for want of equity. The case made by the amended bill and exhibits is this: Aaron H. Allen was the owner of reissued patent No. 1,126 granted to him upon the surrender of original patent No. 12,017, dated December 5, 1854, for a new and useful improvement in seats for public buildings, which was extended for seven years from December 5, 1868, and which consequently expired by limitation December 4, 1875. The complainant claimed to be the sole and exclusive owner in equity of all claims for damages arising out of or occasioned by infringements of said reissued letter patents, committed after September 18, 1869, and of all claims for gains and profits, derived by others by reason of such infringements, by virtue of certain written instruments, set out as exhibits to the bill. The first of these is an instrument dated September 18, 1869, by which Allen grants to J. W. Schermerhorn & Co. 'the sole right and privilege of manufacturing and selling school furniture, made according to' the reissued patent, 'for a tilting seat on the lever principle,' subject to the terms and conditions of an indenture between the parties, which, however, is not set out. On April 22, 1881, John H. Platt, as assignee of James W. Schermerhorn, George M. Kendall, and George Munger, bankrupts, transfers to the complainant all the interest of the bankrupts in the Allen patent, and all causes of action arising to him, as assignee of the bankrupts, by reason of his interest in the said patent, and especially his claim in a certain suit then pending, brought by Allen in the circuit court of the United States for the southern district of New York against the city of New York. The second and only other instrument of title exhibited is an assignment from Allen, the patentee, to the complainant, dated March 8, 1880, whereby Allen transfers to him and to his assigns all his right and interest in the suit, mentioned in the assignment from Platt, agaisnt the city of New York, 'together with all claims for damages arising since the eighteenth day of September, 1869, against any persons, firms, or corporations, by reason of infringements of letters patent of the United States for a tilting seat supported on the lever principle,' being the reissued patent specified in the bill. And the complainant is thereby further constituted the attorney in fact of Allen, irrevocably, in his name to demand and recover all such damages, for his own use, paying all expenses, but accounting for 30 per cent. of all sums recovered to allen, until the latter shall have received $6,600, and no longer. It is alleged in the amended bill that in the suit against the city of New York a decision was reached sustaining the validity of the patent, but no final decree therein has been entered; and that, owing to the delays incident to that litigation, while waiting for a decision upon the validity of the patent, neither Allen nor complainant have been in a situation to prosecute other infringers or sooner to file this bill. It is also alleged in the amended bill that the defendants have infringed the said letters patent since September 18, 1869, and until the expiration thereof, and in violation thereof 'have manufactured, sold, and used the said invention for improvements in seats for public buildings, patented as aforesaid, whereby great injury resulted to your orator, and great gains and profits accured to the said defendants,' for which, accordingly, an account is prayed, and a decree for the amount thereof and for damages. The original bill was filed December 1, 1881, Allen being a concomplainant, and the amended bill on May 25, 1882, the original bill having been dismissed as to Allen. It is manifest that the right claimed by the complainant receives no support from any title derived from Allen through J. W. Schermerhorn & Co., for the right of the latter under the instrument of September 18, 1869, was that of mere licensees. They could maintain no action for damages or profits against infringers, for they had no interest in the patent, nor was there any assignment to them of any right of action accrued or to accrue to Allen. In addition to this, the license itself only extended to the manufacture and sale of school furniture, and there is no allegation in the amended bill that the defendants had infringed the patent in that respect. That branch, therefore, of the complainant's bill is removed from the case, and he is relieved from the embarrassment which, it is alleged in argument, is occasioned by the uncertainty produced by alternative and inconsistent titles, and which is made one of the grounds for claiming the right to resort to equity. The case, then, is left to stand upon the right derived under the contract between Allen and the complainant of March 8, 1880, and the single question remains whether the assignee of a chose in action may proceed by bill in equity to enforce for his own use the legal right of his assignor, merely because he cannot sue at law in his own name. It is admitted that according to the rule declared and established in Root v. Railroad Co. 105 U. S. 189, the patentee could not, in his own name and right, maintain the present suit, and the original bill, in which he was a co-complainant with the appellant, was accordingly dismissed as to him. To permit the latter to proceed in equity, upon the mere ground of the assignment to him, would be substantially to abrogate that rule. The principle was stated to be that the relief granted to a patentee in equity, by the recovery of profits and damages against an infringer, was 'incidental to some other equity, the right to enforce which secures to the patentee his standing in court;' that 'the most general ground for equitable interposition is to insure to the patentee the enjoyment of his specific right by injunction against a continuance of the infringement; but that grounds of equitable relief may arise other than by way of injunction;' and among these, by way of illustration, was mentioned that 'where the title of the complainant is equitable merely;' but it is the obvious meaning of the passage to limit the exception to cases where the purpose and necessity of the resort to a court of chancery are to enforce the peculiar equity personal to the complainant, and not merely the legal right of which he is the beneficial owner. If the assignee of the chose in action is unable to assert in a court of law the legal right of the assignor, which in equity is vested in him, then the jurisdiction of a court of chancery may be invoked, because it is the proper forum for the enforcement of equitable interests, and because there is no adequate remedy at law; but when, on the other hand, the equitable title is not involved in the litigation, and the remedy is sought merely for the purpose of enforcing the legal right of his assignor, there is no ground for an appeal to equity, because, by an action at law in the name of the assignor, the disputed right may be perfectly vindicated and the wrong done by the denial of it fully redressed. To hold otherwise would be to enlarge the jurisdiction of courts of equity to an extent, the limits of which could not be recognized, and that, in cases where the only matters in controversy would be purely legal rights. In opposition to this view, a passage from Story, Eq. Jur. § 1057a, is cited and relied on in argument, in which that learned author, after stating that it had been 'recently held that the assignee of a debt, not in itself negotiable, is not entitled to sue the debtor for it in equity, unless some circumstances intervened which show that his remedy at law is, or may be, obstructed by the assignor,' adds that 'this doctrine is apparently new, at least in the broad extent in which it is laid down, and does not seem to have been generally adopted in America. On the contrary, the more general principle established in this country seems to be that wherever an assignee has an equitable right or interest in a debt or other property, (as the assignee of a debt certainly has,) then a court of equity is the proper forum to enforce it; and he is not to be driven to any circuity by instituting a suit at law in the name of the person who is possessed of the legal title.' In the next paragraph, however, it is admitted that 'if the assignment be of a contract involving the consideration and ascertainment of unliquidated damages, as in case of the assignment of a policy of insurance, then, unless some obstruction exists to the remedy at law, it would seem that a court of equity ought not, or might not, interfere to grant relief; for the facts and the damages are properly matters for a jury to ascertain and decide. But the same objection would not lie to an assignment of a bond or other security for a fixed sum.' The doctrine referred to in this passage as 'apparently new,' is that stated by Vice-Chancellor SHADWELL in Hammond v. Messenger, 9 Sim. 327-332, where he said: 'If this case were stripped of all special circumstances, it would be simply a bill filed by a plaintiff who had obtained from certain persons, to whom a debt was due, a right to sue in their name for the debt. It is quite new to me, in such a simple case as that, this court allows, in the first instance, a bill to be filed against the debtor by the person who has become the assignee of the debt. I admit that if special circumstances are stated, and it is represented that, notwithstanding the right which the party has obtained to sue in the name of the creditor, the creditor will interfere and prevent the exercise of that right, this court will interpose for the purpose of preventing that species of wrong being done; and if the creditor will not allow the matter to be tried at law in his name, this court has a jurisdiction in the first instance to compel the debtor to pay the debt to the plaintiff, especially in a case where the act done by the creditor is done in collusion with debtor. If bills of this kind were allowable, it is obvious they would be pretty frequent; but I never remember any instance of such a bill as this being filed, unaccompanied by special circumstances.' And, accordingly, the supreme judicia, court of Massachusetts, in Walker v. Brooks, 125 Mass. 241, held that 'a court of equity will not entertain a bill by the assignee of a strictly legal right, merely upon the ground that he cannot bring an action at law in his own name, nor unless it appears that the assignor prohibits and prevents such an action from being brought in his name, or that an action so brought would not afford the assignee an adequate remedy.' And Chief Justice GRAY, delivering its opinion in that case, referring to the passage from Story to the contrary, said: 'But the adjudged cases, including those cited by the learned commentator, upon being examined, fail to support his position, and show that the doctrine of Hammond v. Messenger is amply sustained by earlier authorities in England and in this country.' This conclusion he then verifies by a review of the cases from the time of Lord Chancellor KING, whose decision in Dhegehoft v. London Assurance Co. was affirmed in the house of lords,—Mosely, 83; 4 Brown, Parl. Cas. (2d Ed.) 436;—followed by Lord HARDWICKE, in Motteaux v. London Assurance co. 1 Atkyns, 545, 547, and Lord LOUGHBOROUGH, in Caton v. Burke, 1 Brown, Ch. 434, to Vice-Chancellor KNIGHT BRUCE, in Rose v. Clarke, 1 Younge & C. Ch. 534, 548; and in this country from Carter v. United Ins. co. 1 Johns. Ch. 463, by Chancellor KENT; and Ontario Bank v. Mumford, 2 Barb. Ch. 596, 615, by Chancellor WALWORTH; including several others in various states. He then points out that in Riddle v. Mandeville, 5 Cranch, 322, the principal case cited by Mr. Justice STORY in support of his statement, a bill in equity by an indorsee of a promissory note against a remote indorser was sustained by this court, upon the ground that in Virginia, the law of which governed the case, no remedy at law could be had against him, except by the circuitous course of successive actions by each indorsee against his immediate indorser, and that, in that particular case, the intermediate party was insolvent; and that Chief Justice MARSHALL, who delivered the opinion in that case, did not consider it as establishing the general proposition for which it was cited, was manifest from his opinion in the later case of Lenox v. Roberts, 2 Wheat. 373, in which the assignee of all the property of a banking corporation was allowed to maintain a bill in equity in his own name upon a promissory note which had not been formally indorsed to him, for the reason that, 'as the act of incorporation had expired, no action culd be maintained at law by the bank itself.' The same doctrine had received a pointed application by this court in the case of Thompson v. Railroad Cos. 6 Wall. 134. That case was commenced in the state court in Ohio, by the parties in interest, in their own name, although only beneficially entitled, in accordance with the Code of the state. It was removed into the circuit court, where the plaintiffs filed a bill in equity, because their title was equitable merely. A decree in their favor, on appeal, was reversed by this court; Mr. Justice DAVIS remarking, in the opinion, that 'this case does not present a single element for equitable jurisdiction and relief,' and added: 'The absence of a plain and adequate remedy at law is the only test of equity jurisdiction, and it is manifest that a resort to a court of chancery was not necessary in order to enable the railroad companies to collect their debt.' That decision has been cited with approval in the subsequent cases of Walker v. Dreville, 12 Wall. 442; Van Norden v. Morton, 99 U. S. 380; and Hunt v. Hollingsworth, 100 U. S. 103. In the present case, the complainant had a plain and adequate remedy at law by an action in the name of Allen, whose willingness to permit his name to be so used, in accordance with his agreement to that effect, is manifest from the fact that in the original bill he was named as one of the complainants. There was, therefore, no error committed by the circuit court in dismissing the amended bill for want of jurisdiction in equity. The decree is accordingly affirmed.
108.US.267	The attempted transfer of a certificate of deposit on the donor's death-bed, reported in .Basketv . Hassell, 107 U. S. 602, cannot be enforced here as a will of personalty, oecause such will does not take effect under the statutes of Tennessee until probate.	It is now urged that the indorsement and delivery of the c nevertheless good as a will of personalty under the laws of Tennessee, and, passing the title as such, entitled the appellant to a decree for the payment of the money. But the conclusion is not justified by the assumption, for a will of personalty in Tennessee does not take effect until probate, (St. Tenn. 1871, § appointed previously, as in case of intestacy, to whom the decree in this case awarded it. The petition is, therefore, denied.
107.US.596	An assignment of such claims as are mentioned in Union Trust Company v. Souther, ante, p. 591, passes the right of the original holder to payment out of the fund in the hands of the receiver.	The facts and questions certified in this case are in all material respects like those in the Union Trust Co. v. Souther, just decided, [ante, 295.] Without, therefore, answering the questions further than by reference to what has been said in that case, we affirm the decree.
109.US.132	1. The rule that where words- are used- in an act imposing duties upon imports, which have acquired by commercial -use a meaning different from their ordinary meaning, the latter may be controlled by the former, Is not applicable when the language used in the statute is unequivocal. 2. The fact that at the date of the passage of an act imposing duties, goods of a certain kind-had not been manufactured, does not withdraw them from the class to which they belong, when the language of the statute clearly and fairly includes them.	This action was brought to recover money alleged to have been illegally exacted by the collector of customs at the port of New York, and paid under protest. There was a verdict and judgment in favor of the defendant below, to reverse which this writ of error is prosecuted. The importations were made in 1875 and consisted of cotton goods, upon which the collector assessed a duty of 5 1/2 cents a square yard, and 20 per centum ad valorem. The plaintiff at the time of the liquidation claimed that the goods were liable to a duty of only 35 per cent. ad valorem as manufactures of cotton not otherwise provided for. It was proven on the trial that goods like those in question were first manufactured in Manchester, England, in 1868 or 1869, they being then a new article of manufacture, and were first introduced into this country in 1869 or 1870. They have been known since their first introduction into this country in trade and commerce by the name of cotton Italians, and used exclusively for coat linings. The importations in question were wholly of cotton, and dyed black in the piece, after being woven, and were made in imitation of a well-known article called Italian cloth, made of wool, and used for lining woolen coats. The surface of the cotton Italians was by some process of weaving and calendering made smooth and glossy like that of the real Italians. Plain woolen goods are those in which the warp and woof threads cross each other at right angles. Cotton Italians are not plain woven, but are twilled goods, and had upon them figures of different designs made in weaving. The cotton Italians in question had more than 100 threads, and less than 200 threads, to the square inch, counting the warp and filling, and were less in weight than five ounces to the square yard, and did not exceed in value 25 cents to a square yard. Plaintiff's counsel gave evidence tending to show that the number of threads to the square inch in plaintiff's importations could not be counted without unraveling the goods. The plaintiff's counsel asked the plaintiff, who was duly sworn as a witness in the cause, the following question: 'Are the goods bought and sold of the count of the number of threads?' The defendant's counsel objected to the question as immaterial. The court sustained the objection, and plaintiff's counsel duly excepted. The plaintiff's counsel then offered to prove by the witness that goods like those in question were never known in trade and commerce in this country as countable goods, or so bought and sold. The defendant's counsel objected to the evidence as immaterial. The court sustained the objection, and plaintiff's counsel duly excepted. Plaintiff's counsel then offered to show that prior to 1861, and ever since, there have been in trade and commerce in this country a great variety of cotton cloths known as countable goods, and which were bought and sold by the number of threads in the warp and filling, which number of threads were ascertainable by a glass and without taking the fabric to pieces. The defendant's counsel objected to the question as immaterial. The court sustained the objection, and plaintiff's counsel duly excepted. The plaintiff's counsel then asked the witness the following question: 'Was the value of cotton Italians partially or wholly determined, between the manufacturer and the purchaser, according to the number of threads to the square inch?' To this question defendant's counsel objected as immaterial. The court sustained the objection, and plaintiff's counsel duly excepted. It was conceded that plaintiff's goods were neither cotton jeans, denims, drillings, bed-tickings, ginghams, plaids, cottonades, nor pantaloon stuff, nor goods of like description to them or either of them, nor for similar use. Among others, not necessary here to refer to, the following instruments were requested by the counsel for the plaintiff in error, which the court refused to give, and to which exception was duly taken, viz.: '(3) That if the number of threads to the square inch in plaintiff's goods, counting the warp and filling, cannot be counted without taking the goods to pieces, then the plaintiff is entitled to recover.' '(5) That cotton Italians, being a new manufacture, and unknown here and abroad when the act of 1864 was passed, they were not specifically enumerated, and the presumption, until rebutted, is that they come under the general provision of manufactures not otherwise provided for.' The provisions of the law which govern the case are contained in section 2504, Rev. St., being Schedule A, cotton and cotton goods, and are as follows: '(1) Sec. 2504. On all manufactures of cotton, (except jeans, denims, drillings, bed-tickings, ginghams, plaids, cottonades, pantaloon stuff, and goods of like description,) not bleached, colored, stained, painted, or printed, and not exceeding one hundred threads to the square inch, counting the warp and filling, and exceeding in weight five ounces per square yard, five cents per square yard; if bleached, five cents and a half per square yard; if colored, stained, painted, or printed, five cents and a half per square yard, and, in addition thereto, 10 per centum ad valorem. '(2) On finer and lighter goods of like description, not exceeding two hundred threads to the square inch, counting the warp and filling, unbleached, five cents per square yard; if bleached, five and a half cents per square yard; if colored, stained, painted, or printed, five and a half cents per square yard, and, in addition thereto, twenty per centum ad valorem. '(3) On goods of like description, exceeding two hundred threads to the square inch, counting the warp and filling, unbleached, five cents per square yard; if bleached, five and a half cents per square yard; if colored, stained, painted, or printed, five and a half cents per square yard, and, in addition thereto, twenty per centum ad valorem. '(4) On cotton jeans, denims, drillings, bed-tickings, ginghams, plaids, cottonades, pantaloon stuffs, and goods of like description, or for similar use, if unbleached, and not exceeding one hundred threads to the square inch, counting the warp and filling, and exceeding five ounces to the square yard, six cents per square yard; if bleached, six cents and a half per square yard; if colored, stained, painted, or printed, six cents and a half per square yard, and, in addition thereto, ten per centum ad valorem. '(5) On finer or lighter goods of like description, not exceeding two hundred threads to the square inch, counting the warp and filling, if unbleached, six cents per square yard; if bleached, six and a half cents per square yard; if colored, stained, painted, or printed, six and a half cents per square yard, and, in addition thereto, fifteen per centum ad valorem. '(6) On goods of lighter description, exceeding two hundred threads to the square inch, counting the warp and filling, if unbleached, seven cents per square yard; if bleached, seven and a half cents per square yard; if colored, stained, painted, or printed, seven and a half cents per square yard, and, in addition thereto, fifteen per centum ad valorem: provided, that upon all plain woven cotton goods, not included in the foregoing schedule, unbleached, valued at over sixteen cents per square yard; bleached, valued at over twenty cents per square yard; colored, valued at over twenty-five cents per square yard; and cotton jeans, denims, and drillings, unbleached, valued at over twenty cents per square yard; and all other cotton goods of every description, the value of which shall exceed twenty-five cents per square yard, there shall be levied, collected, and paid a duty of thirty-five per centum ad belorem: and provided, further, that no cotton goods having more than two hundred threads to the square inch, counting the warp and filling, shall be admitted to a less rate of duty than is provided for goods which are of that number of threads.' '(12) * * * and all other manufactures of cotton, not otherwise provided for, thirty-five per centum ad valorem.' The contention of the plaintiff in error now relied on is, in substance, that the goods in question are not embraced in the provisions of the statute, applicable to 'manufactures of cotton,' described and classed by the number of threads to the square inch, because that description had reference only to goods so described and classed by mercantile usage in dealings between buyers and sellers, where the threads could be counted by the aid of a glass, whereas, the goods in question, as it must be assumed from the offers of proof which were rejected, were not dealt in by manufacturers and merchants according to any such usage, and could not be, because the threads in a square inch could not be counted, except by unraveling the fabric for that purpose; and it is therefore argued that, as the goods in question were of a new manufacture, not known at the date of the passage of the act, they cannot be considered as within the specified enumeration of the statute, and the appropriate duty must be determined by the final clause, embracing 'all other manufactures of cotton not otherwise provided for.' The claim is, in the language of counsel making it, that 'congress did not mean to subject to this 'countable' clause every article of cotton manufacture of which, by cutting out a square inch, the number of threads constituting the warp and woof of that area could be counted, but only those articles in which the threads were counted in ordinary mercantile transactions therein, and which could be counted by methods practiced by the trade.' It is sought to support this argument by invoking the rule of construing the statute applied in Arthur v. Morrison, 96 U. S. 108, and the numerous cases there cited, that where words are used in an act imposing duties upon imports which have acquired, by commercial use, a meaning different from their ordinary meaning, the latter may be controlled by the former if such be the apparent intent of the statute; but the application fails in the present instance because the language used is unequivocal. There is no reference in the statute, either expressly or by implication, to any commercial usage, and there is no language in it which requires for its interpretation the aid of any extrinsic circumstances. The rejected proof of the custom of merchants to rate certain descriptions of goods, as to values, by the number of threads to the square inch, as ascertained by inspection by means of a glass, throws no light whatever on the meaning of the law, because the law fixes the rate of duty by a classification based on the number of the threads in a square inch, without reference to the mode in which the count is to be made. It might be quite convenient for dealers not to count the threads, except when they could do so without unraveling, but it is pure conjecture that congress intended to stop the count by collectors at the same limit. There appears to be no difficulty in counting the threads, no matter how fine the fabric, as long as the goods are plain woven, and the necessity of unraveling for the purpose of counting seems to exist only in case of twilled goods; and yet this very act requires a count of threads in the case of jeans, denims, drillings, bed-tickings, etc., which are twilled, and bases a difference of duty upon them according to the number of threads to the square inch so ascertained. The fact that at the date of the passage of the act goods of the kind in question had not been manufactured, cannot withdraw them from the class to which they belong, as described in the statute, where, as in the present case, the language fairly and clearly includes them. There is no error in the record, and the judgment is accordingly affirmed.
109.US.285	1. The right to demand reimbursement from a municipal corporation for damages caused by a mob, is not founded on contract. It is a statutory right., and may be given or taken away at pleasure. 2. The fact that a statutory right to demand reimbursement from a municipal corporation for damages caused by a mob has been converted into a judgment does not make of the obligation such a contract as is contemplated in the provision of Article I. Section 10 of the Constitution, that no State shall pass any law impairing the obligation of contracts. 8. The term "contract," as used in the Constitution, signifies the agreement of two.or more minds for considerations proceeding from one to the other, to do or not to do certain acts. 4. To deny to a municipal corporation the right to impose taxes to such an extent as to make it impossible to pay a judgient recovered against it for injuries done by a mob is not depriving the owner of the judgment of property within the meaning of the Fourteenth, Amendment to the Constitution.	The relators are the holders of two judgments against the city of New Orleans,—one for $26,850, the other for $2,000. Both were recovered in the courts of Louisiana,—the first in June, 1877, by the relators; the second in June, 1874, by parties who assigned it to them. Both judgments were for damages done to the property of the plaintiffs therein by a mob or riotous assemblage of people in the year 1873. A statute of the state made municipal corporations liable for damages thus caused within their limits. Rev. St. La. 1870, § 2453. The judgments were duly registered in the office of the comptroller of the city, pursuant to the provisions of the act known as No. 5 of the extra session of 1870, and the present proceeding was taken by the relators to compel the authorities of the city to provide for their payment. At the time the injuries complained of were committed, and one of the judgments was recovered, the city of New Orleans was authorized to levy and collect a tax upon property within its limits of $1.75 upon every $100 of its assessed value. At the time the other judgment was recovered this limit of taxation was reduced to $1.50 on every $100 of the assessed value of the property. By the constitution of the state adopted in 1879 the power of the city to impose taxes on property within its limits was further restricted to 10 mills on the dollar of the valuation. The effect of this last limitation is to prevent the relators, who are not allowed to issue executions against the city, from collecting their judgments, as the funds receivable from the tax thus authorized to be levied are exhausted by the current expenses of the city, which must first be met. The relators sought in the state courts to compel a levy by the city of taxes to meet their judgments at the rate permitted when the damages were done for which the judgments were obtained. They contended that the subsequent limitation imposed upon its power violated that clause of the federal constitution which prohibits a state from passing a law impairing the obligation of contracts, and also that clause of the fourteenth amendment which forbids a state to deprive any person of life, liberty, or property without due process of law. The supreme court of the state, reversing the lower court, decided against the relators, and the same contention is renewed here. The right to reimbursement for damages caused by a mob or riotous assemblage of people is not founded upon any contract between the city and the sufferers. Its liability for the damages is created by a law of the legislature, and can be withdrawn or limited at its pleasure. Municipal corporations are instrumentalities of the state for the convenient administration of government within their limits. They are invested with authority to establish a police to guard against disturbance; and it is their duty to exercise their authority so as to prevent violence from any cause, and particularly from mobs and riotous assemblages. It has therefore been generally considered as a just burden cast upon them to require them to make good any loss sustained from the acts of such assemblages which they should have repressed. The imposition has been supposed to create, in the holders of property liable to taxation within their limits, an interest to discourage and prevent any movements tending to such violent proceedings. But, however considered, the imposition is simply a measure of legislative policy, in no respect resting upon contract, and subject, like all other measures of policy, to any change the legislature may see fit to make, either in the extent of the liability or in the means of its enforcement. And its character is not at all changed by the fact that the amount of loss, in pecuniary estimation, has been ascertained and established by the judgments rendered. The obligation to make indemnity created by the statute has no more element of contract in it because merged in the judgments than it had previously. The term 'contract' is used in the constitution in its ordinary sense, as signifying the agreement of two or more minds, for considerations proceeding from one to the other, to do or not to do certain acts. Mutual assent to its terms is of its very essence. A judgment for damages, estimated in money, is sometimes called by text writers a specialty or contract of record, because it establishes a legal obligation to pay the amount recovered; and, by a fiction of law, a promise to pay is implied where such legal obligation exists. It is on this principle that an action ex contractu will lie upon a judgment. Chit. Cont. (Perkins Ed.) 87. But this fiction cannot convert a transaction wanting the assent of parties into one which necessarily implies it. Judgments for torts are usually the result of violent contests, and, as observed by the court below, are imposed upon the losing party by a higher authority against his will and protest. The prohibition of the federal constitution was intended to secure the observance of good faith in the stipulation of parties against any state action. Where a transaction is not based upon any assent of parties, it cannot be said that any faith is pledged with respect to it; and no case arises for the operation of the prohibition. Garrison v. City of New York, 21 Wall. 203. There is therefore nothing in the liabilities of the city, by reason of which the relators recovered their judgments, that precluded the state from changing the taxing power of the city, even though the taxation be so limited as to postpone the payment of the judgments. The clause of the fourteenth amendment cited is equally inoperative to restrain the action of the state. Conceding that the judgments, though founded upon claims to indemnity for unlawful acts of mobs or riotous assemblages, are property in the sense that they are capable of ownership and may have a pecuniary value, the relators cannot be said to be deprived of them so long as they continue an existing liability against the city. Although the present limitation of the taxing power of the city may prevent the receipt of sufficient funds to pay the judgments, the legislature of the state may, upon proper appeal, make other provision for their satisfaction. The judgments may also, perhaps, be used by the relators or their assigns as offsets to demands of the city; at least, it is possible that they may be available in various ways. Be this as it may, the relators have no such vested right in the taxing power of the city as to render its diminution by the state, to a degree affecting the present collection of their judgments, a deprivation of their property in the sense of the constitutional prohibition. A party cannot be said to be deprived of his property in a judgment because at the time he is unable to collect it. The cases in which we have held that the taxing power of a municipality continues, notwithstanding a legislative act of limitation or repeal, are founded upon contracts; and decisions in them do not rest upon the principle that the party affected in the enforcement of his contract rights has been thereby deprived of any property, but upon the principle that the remedies for the enforcement of his contracts, existing when they were made, have been by such legislation impaired. The usual mode in which municipal bodies meet their pecuniary contracts is by taxation. And when, upon the faith that such taxation will be levied contracts have been made, the constitutional inhibition has been held to restrain the state from repealing or diminishing the power of the corporation so as to deprive the holder of the contract of all adequate and efficacious remedy. As we have often said, the power of taxation belongs exclusively to the legislative department of the government, and the extent to which it shall be delegated to a municipal body is a matter of discretion, and may be limited or revoked at the pleasure of the legislature. But, as we held in Wolff v. New Orleans, 103 U. S. 358, and repeated in Louisiana v. Pilsbury, 105 U. S. 278, in both cases, by the unanimous judgment of the court, the legislation in that respect is subject to this qualification, which attends all state legislation, that it—— 'shall not conflict with the prohibitions of the constitution of the United States, and, among other things, shall not operate directly upon contracts of the corporation, so as to impair their obligation by abrogating or lessening the means of their enforcement. Legislation producing this latter result, not indirectly as a consequence of legitimate measures taken, as will sometimes happen, but directly by operating upon those means, is prohibited by the constitution, and must be disregarded,—treated as if never enacted,—by all courts recognizing the constitution as the paramount law of the land. This doctrine has been repeatedly asserted by this court when attempts have been made to limit the power of taxation of a municipal body, upon the faith of which contracts have been made, and by means of which alone they could be performed. * * * However great the control of the legislature over the corporation while it is in existence, it must be exercised in subordination to the principle which secures the inviolability of contracts.' This doctrine can have no application to claims against municipal corporations founded upon torts of the character mentioned. Whether or not the state, in so limiting the power of the city to raise funds by taxation that it cannot satisfy all claims against it recognized by law, though not resting upon contract, does a wrong to the relators, which a wise policy and a just sense of public honor should not sanction, is not a question upon which this court can pass. If the action of the state does not fall within any prohibition of the federal constitution, it lies beyond the reach of our authority. The question of the effect of legislation upon the means of enforcing an ordinary judgment of damages for a tort, rendered against the person committing it, in favor of the person injured, may involve other considerations, and is not presented by the case before us. Judgment affirmed. BRADLEY, J. I concur in the judgment in this case on the special ground that remedies against municipal bodies, for damages caused by mobs, or other violators of law, unconnected with the municipal government, are purely matters of legislative policy, depending on positive law, which may at any time be repealed or modified, either before or after the damage has occurred, and the repeal of which causes the remedy to cease. In giving or withholding remedies of this kind, it is simply a question whether the public shall or shall not indemnify those who sustain losses from the unlawful acts or combinations of individuals; and whether it shall or shall not do so is a matter of legislative discretion; just as it is whether the public shall or shall not indemnify those who suffer losses at the hands of a public enemy, or from intestine commotions or rebellion; and, as the judgments in the present case were founded upon a law giving this kind of remedy, I agree with the court that any restraint of taxation which may affect the means of enforcing them is within the constitutional power of the legislature. Until the claim is reduced to possession, it is subject to legislative regulation. But an ordinary judgment of damages for a tort, rendered against the person committing it, in favor of the person injured, stands upon a very different footing. Such a judgment is founded upon an absolute right, and is as much an article of property as anything else that a party owns; and the legislature can no more violate it without due process of law than it can any other property. To abrogate the remedy for enforcing it, and to give no other adequate remedy in its stead, is to deprive the owner of his property within the meaning of the fourteenth amendment. The remedy for enforcing a judgment is the life of the judgment, just as much as the remedy for enforcing a contract is the life of the contract. While the original constitution protected only contracts from being impaired by state laws, the fourteenth amendment protects every species of property alike, except such as in its nature and origin is subject to legislative control. Hence, I regard it important clearly to distinguish between this kind of judgment now under consideration and other judgments, for claims based upon the absolute right of the party. HARLAN, J., dissenting. By the constitution of Louisiana adopted in 1879, and which went into effect January 1, 1880, it is declared that 'no parish or municipal tax for all purposes whatever shall exceed ten mills on the dollar of valuation.' The judgments held by plaintiffs in error against the city of New Orleans were rendered and became final long before the adoption of that constitutional provision. At the time of their rendition, the law forbade execution against the defendant, but the city had the power, and was under a duty, which the courts could compel it to discharge, to include in its budget or annual estimate for contingent expenses a sum sufficient to pay these judgments. At that time, also, the rate of taxation prescribed by law was ample to enable the city to meet all such obligations. But if the limitation upon taxation imposed by the state constitution be applied to the judgments in question, then it is conceded the city cannot raise more money than will be required to meet the ordinary and necessary expenses of municipal administration. Consequently, under the limit of 10 mills on the dollar of valuation, the judgments of plaintiffs become as valueless as they would be had the state constitution in terms forbidden the city from paying them. 1. Are the judgments in the question contracts? This question is answered by the Court of Appeals of New York, speaking by Woodruff, J., in Taylor v. Root, 4 Keyes, 344. It is there said: "Contracts are of three kinds: Simple contracts, contracts by specialty, and contracts of record. A judgment is a contract of the highest nature known to the law ... The cause or consideration of the judgment is of no possible importance; that is merged in the judgment. When recovered, the judgment stands as a conclusive declaration that the plaintiff therein is entitled to the sum of money recovered. No matter what may have been the original cause of action, the judgment forever settles the plaintiff's claim and the defendant's assent thereto; this assent may have been reluctant, but in law it is an assent, and the defendant is estopped by the judgment to dissent. Forever thereafter, any claim on the judgment is setting up a cause of action on contract." Blackstone says that "when any specific sum is adjudged to be due from the defendant to the plaintiff on an action or suit at law, this is a contract of the highest nature, being established by the sentence of a court of judicature." 3 Bl. 465. Chitty enumerates judgments among contracts or obligations of record, and observes that they "are of superior force, because they have been promulgated by, or are founded upon, the authority and have received the sanction of, a court of record." Chitty on Contracts, 3. An action in form ex contractu will lie on a judgment of a court of record, because the law implies a contract to pay it from the fact of there being a legal obligation to do so, "although," says Chitty, "the transaction in its origin was totally unconnected with contract, and there has been no promise in fact." Id. 87. It seems to me that these judgments are contracts, within any reasonable interpretation of the contract clause of the national Constitution. It can hardly be that the framers of that instrument attached less consequence to contracts of record than to simple contracts. If this view be correct, then the withdrawal from the city of New Orleans of the authority which it possessed when they were rendered, to levy taxes sufficient for their payment, impaired the obligation of the contracts evidenced by those judgments. 2. But if this view be erroneous, it seems quite clear that the state constitution of 1879 cannot be applied to these judgments without bringing it into conflict with that provision of the national constitution which declares that no state shall deprive any person of property without due process of law. That these judgments are property within the meaning of the constitution cannot, it seems to me, be doubted. They are none the less property because the original cause of action did not arise out of contract in the literal meaning of that word, but rests upon a statute making municipal corporations liable for property destroyed by a mob. If a judgment giving damages for such a tort is not a contract within the meaning of the contract clause of the constitution, it is, nevertheless, property, of which the owner may not be deprived without due process of law. Its value as property depends in every legal sense upon the remedies which the law gives to enforce its collection. To withhold from the citizen who has a judgment for money the judicial means of enforcing its collection—or, what is, in effect, the same thing, to withdraw from the judgment debtor, a municipal corporation, the authority to levy taxes for its payment is to destroy the value of the judgment as property. In Pumpelly v. Green Bay Co. 13 Wall. 166, this court had occasion to consider the meaning of that provision in the constitutions of the several states which forbids private property from being taken for public purposes without just compensation therefor. Under the authority of statutes of Wisconsin certain dams were constructed across a public navigable stream of that state. The dams so constructed caused the waters to overflow the land of a citizen, resulting in the almost complete destruction of its value. The argument was there made that the land was not taken within the meaning of the constitution, and that the damage was only the consequential result of such use of a navigable stream as the government had a right to make for the purposes of navigation. But, touching that suggestion, this court said: 'It would be a very curious and unsatisfactory result if, in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen, and commentators, as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for invasion of private rights under the pretext of the public good, which had no warrant in the laws or practice of our ancestors.' These principles of constitutional construction have an important bearing upon the present case. If the property of the citizen is 'taken,' within the meaning of the constitution, when its value is destroyed or permanently impaired through the act of the government, or by the act of others under the sanction or authority of the government, it would seem that the citizen, holding a judgment for money against a municipal corporation, which judgment is capable of enforcement by judicial proceedings at the time of its rendition,—is deprived of his property without due process of law, if the state, by a subsequent law, so reduces the rate of taxation as to make it impossible for the corporation to satisfy such judgment. Since the value of the judgment, as property, depends necessarily upon the remedies given for its enforcement, the withdrawal of all remedies for its enforcement, and compelling the owner to rely exclusively upon the generosity of the judgment debtor, is, I submit, to deprive the owner of his property. But it is said that the plaintiffs are not deprived of their judgments, so long as they continue to be existing liabilities against the city. My answer is, that such liability upon the part of the city is of no consequence, unless, when payment is refused, it can be enforced by legal proceedings. A money judgment which cannot be collected is of as little value as Pumpelly's farm was, when covered by water to such an extent that it could not be used for any of the purposes for which land is desired. It is also said by my brethren that plaintiffs are not deprived of their property in these judgments because at the time they are unable to collect them. No state shall 'deprive any person of life, liberty, or property without due process of law,' is the mandate of the constitution. Could a state law depriving a person of his liberty be sustained upon the ground that such deprivation was only for a time? Pumpelly's land was adjudged to have been taken within the meaning of the constitution, although it was possible that, at some future time, the dams constructed under the authority of the state might be abandoned, or might give way, causing the waters to retire within their original limits, and thereby enabling the owner to reoccupy his farm. It is barely possible that the people of Louisiana may, at some future period in their history, amend her constitution, so as to permit the city of New Orleans to levy taxes sufficient to meet its indebtedness, as established by the judicial tribunals of that state. But such a possibility cannot properly be recognized as an element in the legal inquiry whether the state may so reduce the rate of taxation, by one of its municipal corporations, as to deprive it altogether of the power to pay valid judgments against it, which, at the time of their rendition, and under the rate of taxation which then obtained, were collectible through judicial proceedings. It is further said that these judgments may also, 'perhaps,' be used by the relators or their assignees as offsets to demands of the city. My answer is, that the city may never have such demands. The possibility that it may have, ought not to control the determination of this case, involving, I submit, a present deprivation of property without due process of law. In this case, before the adoption of the constitution of 1879-80, before even the convention that framed it met, the plaintiffs had obtained, in the inferior state court, a final order, in a mandamus suit, requiring the city of New Orleans to include in its next budget or statement of liabilities (and in succeeding budgets, until they were paid) the amounts of existing judgments against it, including those held by plaintiffs, and to levy a tax to the extent of $1.75 on every $100 of valuation to meet them. This judgment, in the mandamus suit, was in accordance with the law of the state as it then was. Plaintiffs, by the application of the constitutional limitation upon municipal taxation, adopted after rendition of judgment in the mandamus suit, is thus deprived not only of the benefit of that judgment, but of all power to enforce the collection of the original judgments, in the only way they can be enforced, or be made of any value. If this be not a deprivation of property without due process of law, it is, I think, difficult to conceive of a case involving such a deprivation. For these reasons, I feel constrained to dissent from the judgment.
108.US.526	An amendment was made to the charter of a railroad company in Illinois providing that "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 fulfil the purposes and carry into effect the provisions of this act, and for the well ordering, regulating and securing the affairs, business, and interest of the company: Provided, That the same be not repugnant to the Constitution and laws of the United States, or repugnant to this act. The board of directors shall have power to establish such rates of toll for the conveyance of persons or property upon the same, as they shall from time to time by their by-laws determine, and to levy and collect the same for the use of the said company:" Held, That inasmuch as the power to establish rates was to be exercised through by-laws, and the power to make by-laws was restricted to such as should not be repugnant (among other things), to the laws of the State, the amendment did not release the oompany from restrictions upon the amount of rates contained in general and special statutes of the State. Grants of immunity from legitimate governmental control are never to be presumed; unless an exemption is clearly established the legislature is free to act on all subjects within its general jurisdiction, as the public interests may require. When there is an ambiguity in the language of a statute it may be necessary to inquire into the objects of the legislature in its enactment; or, if it be a private act, the purposes of the beneficiaries in asking for it; but when the language is clear, and needs no interpretation, and leads to no absurd conclusion, this will not be done.	In the view we take of this case the only question that need by considered is whether the charter of the Central Military Tract Railroad Company, one of the Illinois corporations which, through agreements of consolidation, are now represented by the Chicago, Burlington & Quincy Railroad Company, purports on its face to grant to the company the right to fix the rates of fare and freight to be charged for the conveyance of persons and property on its railroad free of all control by the state. If, on examination, we find that no such grant was intended, it will be unnecessary to decide whether one legislature has the power to bind succeeding legislatures by a contract to that effect. The provisions of the charter relied on to establish such a grant may be stated as follows: On the fifth of November, 1849, an act was passed by the general assembly of Illinois 'to provide for a general system of railroad incorporation.' That act contained the following provisions: 'Sec. 12. The directors of such company shall have power to make by-laws for the management and disposition of stock, property, and business affairs of such company, not inconsistent with the laws of this state, and prescribing the duties of officers, artificers, and servants that may be employed, for the appointment of all officers for carrying on all the business within the object and purposes of such company. 'Sec. 21. Every such corporation shall possess the general powers, and be subject to the general liabilities and restrictions, expressed in the special powers following; that is to say: * * * '(8) To take, transport, carry, and convey persons and property on their railroad, by the force and power of steam, of animals, or any mechanical powers, or by any combination of them, and receive tolls or compensation therefor. * * * '(10) To regulate the time and manner in which passengers and property shall be transported, and the tolls and compensation to be paid therefor; but such compensation for any passenger and his ordinary baggage shall not exceed three cents a mile, unless by special act of the legislature, and shall be subject to alteration as hereinafter provided. * * * 'Sec. 32. The legislature may, when any such railroad shall be opened for use, from time to time, alter or reduce the rates of toll, fare, freight, or other profits upon such road; but the same shall not, without the consent of the corporation, be so reduced as to produce with said profits less than 15 per cent. per annum on the capital actually paid in; nor unless, on an examination of the amounts received and expended, to be made by the secretary of state, he shall ascertain that the net income divided by the company from all sources for the year then last past shall have exceeded an annual income of 15 per cent. upon the capital of the corporation actually paid in.' On the fifteenth of February, 1851, another act was passed to incorporate the Central Military Tract Railroad Company, for the purpose of building and using a railroad between certain designated points. Section 3 of that act is as follows: 'Sec. 3. The said company is hereby created and incorporated for the purpose of organizing under an act entitled 'An act to provide for a general system of railroad incorporations,' in force November 5, 1849, and in all things shall be governed by the provisions thereof, and shall be entitled to have and exercise the powers and privileges and be subject to the liabilities therein enumerated: provided, that the foregoing corporation may attach themselves to and form a part of the Northern Cross Railroad Company, in such manner or on such terms as said companies shall agree.' On the nineteenth of June, 1852, another act was passed 'to amend an act entitled 'An act to incorporate the Central Military Tract Railroad Company." The following are the parts of this amending act on which, in our opinion, the case depends: 'Sec. 5. All the corporate powers of said company shall be vested in and exercised by a board of directors, and such officers and agents as they shall appoint. * * * 'Sec. 6. 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 interest 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 or property upon the same, as they shall from time to time, by their by-laws, determine, and to levy and collect the same for the use of the said company. The transportation of persons and property, the width of track, and all other matters and things respecting the use of said road, shall be in conformity to such rules and rgulations as the said board of directors shall from time to time determine.' It is contended on the part of the company that this amending act repeals clause 10 of section 21 as well as section 32 of the general railroad law, so far as they are applicable to the Central Military Tract Company, and that under section 6 of the amending act the directors have absolute control of rates of fare and freight free of legislative interference. We deem it unnecessary to determine the question of repeal, because on full consideration we are satisfied that section 6 does not have the effect that is claimed for it. Grants of immunity from legitimate governmental control are never to be presumed. On the contrary, the presumptions are all the other way, and unless an exemption is clearly established the legislature is free to act on all subjects within its general jurisdiction, as the public interest may seem to require. As was said by Chief Justice TANEY, speaking for the court, in Charles River Bridge v. Warren Bridge, 11 Pet. 547: 'It can never be assumed that the government intended to diminish its power of accomplishing the end for which it was created.' This is an elementary principle. In Chicago, B. & Q. R. Co. v. Iowa, 94 U. S. 155; Peik v. Chicago %& n. w. r/y. Co. Id. 176; and Winona & St. P. R. Co. v. Blake, Id. 180, it was determined that 'a state may limit the amount of charges by railroad companies for fares and freights, unless restrained by some contract in the charter.' The right to a reversal of the present judgment rests on the question whether this company has any such restraining contract, and that depends on the effect to be given the amending section 6. The company by its original charter was authorized to transport passengers and property, and to receive compensation therefor. This, if there had been nothing more, would, under the rules stated in Munn v. Illinois, 94 U. S. 113, and the several railroad cases decided at the same time, require the company to carry at reasonable rates, and leave the legislature at liberty to fix the maximum of what would be reasonable. So that, laying aside the limitations of the old charter, the question here is whether the amending section relied on has the effect of taking away from the state this power of legislative regulation. The amending section provides that the 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 interest 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.' By section 5, all the powers of the company were vested in and could be exercised by the directors. Clearly, under this authority, no by-law can be established by the directors that does not conform to the laws of the state, and this, whether the laws were in force when the amended charter was granted or came into operation afterwards. The power of the company for the regulation of its own affairs was thus in express terms subjected to the legislative control of the state. The corporate power was a continuing one, and intended for the ordering of the affairs of the company as circumstances might from time to time require. The reserved control by the state was also continuing in its nature, and manifestly intended for the protection of the public whenever in the judgment of the legislative department of the government the necessity should arise. Then follows the special provision on which the claim of a contract is predicated. It is as follows: 'The board of directors shall have power to establish such rates of toll for the conveyance of persons or property upon the same as they shall from time, by their by-laws, determine, and to levy and collect the same for the use of the company.' This is the form in which the power to charge and collect compensation for the carriage of persons and property was granted by the amended charter. The rates must be fixed by by-laws, and no by-law can be made that is at all repugnant to the laws of the state. The first paragraph of the section, with its proviso, prescribes generally what is necessary to the validity of a by-law, and the second allows the directors to fix rates by by-laws. It is undoubtedly true that the first paragraph neither adds to nor takes from the inherent power of a corporation to make by-laws for the regulation of its affairs, and that the proviso is nothing more than a legislative declararation of the principle of the common law that all by-laws must be reasonable, and not in conflict with the laws of the state. But the very fact that such a provision would have been implied, adds to the significance of its incorporation in express terms into the charter, and manifests a determination not to leave room for doubt as to the right of the state to use its legislative power, if necessary, for the regulation of the affairs of the corporation, at least by the enactment of general laws applicable to all corporations of a like character, and engaged in a like business. There is nothing which even in the remotest degree indicates that a by-law fixing rates is to be of a different character from those regulating the other business of the company. When, therefore, in a section of the charter which expressly declares that no by-law shall be made that is in conflict with the laws of the state, we find that the rates of charge to be levied and collected for the conveyance of persons and property are to be regulated by by-laws, the conclustion is irresistible that only such charges can be collected as are allowed by the laws of the state. This implies that, in the absence of direct legislation on the subject, the power of the directors over the rates is subject only to the common-law limitation of reasonableness, for in the absence of a statute, or other appropriate indication of the legislative will, the common law forms part of the laws of the state, to which the corporate by-laws must conform. But since, in the absence of some restraining contract, the state may establish a maximum of rates to be charged by railroad companies for the transportation of persons and property, it follows that when a maximum is so established, the rates fixed by the directors must conform to its requirements, otherwise the by-laws will be repugnant to the laws. It is argued, however, that this cannot be the meaning of the amending act, because if the company had, under its old charter, the absolute right of fixing rates, subject only to a limit of three cents a mile on passengers, and the state had no power to interfere, except to keep the annual profits down to 15 per cent. per annum on the paid-up capital, no one can believe it would have surrendered such a privilege and taken in lieu another so unfavorable as this. It is undoubtedly true, as was claimed in argument, and has been often said from the bench, that amendments to the charters of corporations are usually made at the solicitation of the corporations themselves, who cause the bills to be prepared and submitted to the legislatures for enactment, and that, if there is doubt as to the construction of what is enacted, this fact may be resorted to in aid of interpretation. But Vattel's first general maxim of interpretation is that 'it is not allowable to interpret what has no need of interpretation,' and he continues: 'When a deed is worded in clear and precise terms,—when its meaning is evident and leads to no absurd conclusion,—there can be no reason for refusing to admit the meaning which such deed naturally presents. To go elsewhere in search of conjectures, in order to restrict or extend it, is but to elude it.' Vattel, Law Nat. 244. Here the words are plain and interpret themselves. The directors may establish such by-laws as they please, provided they are not repugnant to the constitution and laws, and they may by their by-laws regulate the rates of fare and freight. As their by-laws must conform to the laws of the state, so must their rates. If the state had not the legislative power to regulate the charges of carriers for hire, the case would be different. But that question has been settled, and the amended charter which this company secured from the legislature must be construed in the light of that established power. Without, therefore, undertaking to determine what rights as to fares and freights were secured to the company under the old charter, nor whether more was gained by the other provisions of the new charter than was lost by the acceptance of section 6 as it was enacted, we affirm the judgment. BLATCHFORD, J., did not sit in this case.
108.US.552	Except in cases affecting ambassadors, other public ministers, or consuls, or those in which a State is a party, the supreme court can only issue a writ of habeas corpus under its appellate jurisdiction.	This is an application for a writ of habeas corpus for the purpose of an inquiry into the legality of the detention of the petitioner, Hung Hang, a subject of the emperor of China, by the chief of police, under a warrant for his arrest, issued by the police judge of the city and county of San Francisco, California, for a violation of an order or ordinance of the board of supervisors of such city and county, alleged to be in contravention of the constitution and of a treaty of the United States. It has long been settled that ordinarily this court cannot issue a writ of habeas corpus except under its appellate jurisdiction. Ex parte Bollman, 4 Cranch, 101; Ex parte Watkins, 7 Pet. 572; Ex parte Yerger, 8 Wall. 99; Ex parte Lange, 18 Wall. 165; Ex parte Parks, 93 U. S. 22; Ex parte Virginia, 100 U. S. 341; Ex parte Siebold, Id. 374. Section 751 of the Revised Statutes, which re-enacts a similar provision in the judiciary act of 1789, (section 14,) gives this court authority to issue the writ, but, except in cases affecting ambassadors, other public ministers, or consuls, and those in which a state is a party, it can only be done for a review of the judicial decision of some inferior officer or court. This petition presents no such case. The writ is consequently denied.
108.US.336	5892 Rev. Stat. enacts that "every person who, having taken an oath before a competent . . . person in any case in which a law of the United States authorizes an oath to be administered . . that any written . . . declaration, .. . or certificate by him subscribed is true, wilfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is gui]ty of perjury." . . On an indictment against a clerk of a circuit and district court for perjury in swearing before a district judge to his emolument returns, and an account for services rendered to the United States: Held, 1. That the words "declaration" and "certificate," as employed in this section of the Revised Statutes, re used in the ordinary and popular sense to signify any statement of material matters of fact sworn to and subscribed by the party charged. 2. That the returns and accounts set forth in the indictments were written declarations within the meaning of § 5392 Rev. Stat. 3. That the written statement and oath of the party together constitute the declaration or certificate of the statute, for the falsity of which a party is chargeable with perjury. 4. That the authority of the district judge to administer the oath not having been certified from below as a question of division, cannot be considered.	ase comes before us on a certificate of division of opinion between the judges holding the circuit court for the southern district of Ohio. The defendant, who was clerk of the circuit and district courts for that district, was indicted for perjury in swearing before the district judge to his emolument returns and an account for services rendered for the United States. The indictment consists of four counts, framed under section 5392 of the Revised Statutes, namely: '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.' In the first three counts of the indictment, after setting out the emolument returns, and their verification by oath of the defendant, the falsity of the counts, and the corrupt perjury of the defendant in swearing to them, each count closes with this language: 'And so the grand jurors aforesaid, on their oaths and affirmations aforesaid, present that he, the said Thomas Ambrose, having taken the said oath, before the said officer who was competent to administer the same, that said written declaration by him so subscribed as aforesaid was true, willfully and contrary to said oath did then and there unlawfully subscribe said matters heretofore set forth, which were material and which he did not believe to be true, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America.' A demurrer was filed to the whole indictment, on the ground, relied on here also, that the paper, to the truth of which defendant swears as it is set forth in the indictment, is neither a declaration, as it is charged to be in the first three counts, nor a certificate, as charged in the last, within the meaning of those words in section 5392. And in regard to this question, as it applies to each count, the judges of the court have sent us the following certificate: (Circuit Court of the United States, Southern District of Ohio.) (1472) UNITED STATES v. THOMAS AMBROSE. Indictment. 'This cause coming on to be heard before the Hon. NOAH H. SWAYNE and Hon, JOHN BAXTER, judges of said court, sitting therein upon the demurrer of defendant to the indictment, certain questions thereupon occurred on said hearing to be decided by the court, to-wit: 'First. Whether the instrument set forth in the first count of indictment, and alleged therein to have been subscribed and sworn to by the defendant, was a written declaration within the meaning of section 5392 of the Revised Statutes of the United States. 'Second. Whether the instrument set forth in the second count of the indictment, and alleged therein to have been subscribed and sworn to by the defendant, was a written declaration within the meaning of section 5392 of the Revised Statutes of the United States. 'Third. Whether the instrument set forth in the third count of indictment, and alleged therein to have been subscribed and sworn to by the defendant, was a written declaration within the meaning of section 5392 of the Revised Statutes of the United States. 'Fourth. Whether the instrument set forth in the fourth count of the indictment, and alleged therein to have been subscribed and sworn to by the defendant, was a written certificate within the meaning of section 5392 of the Revised Statutes of the United States. 'Upon which said questions the judges aforesaid were divided in opinion. 'It is thereupon ordered that the said points of disagreement, stated as above, under the direction of said judges, be certified under the seal of the court to the supreme court of the United States at their next session.' We do not think the words 'declaration' and 'certificate,' as used in the section of the Revised Statutes on which this indictment is founded, are used as terms of art, or in any technical sense, but are used in the ordinary and popular sense, to signify any statement of material matters of fact sworn to and subscribed by the party charged. Indeed, the word 'declaration,' as a word of art in the law, is generally used to signify the plea by which a plaintiff in a suit at law sets out his cause of action, as the word 'complaint' is in the same sense the technical name of a bill in chancery. The fact that in many acts of congress cited by counsel that body has used the word to signify a statement in writing, whether sworn to or not, as the foundation in many cases of official action, or as preliminary to the assertion of rights by the party who makes the declaration, is far from proving that the use of the word in the act concerning perjury is limited to these cases. The inference is strong the other way, for the word is used in the cases cited in regard to so many and such diverse transactions, that it can, in view of them all, have no other meaning than what is attached to it in ordinary use. And in all these instances it is equivalent to a statement of facts material to the matter in hand. The paper or statement of the emolument account, the falsity of which is the foundation of the charge, is set out; and if, in the charging clause of the indictment, it is described by a word equally applicable to other instruments, no harm can come to defendant, since he is precisely informed as to the identical writing which is alleged to be false, and which he swore to be true. Nor can he be mislead in any way, because what he says in that writing is, in the correct use of language, his sworn declaration on that subject. But the perjury in all such cases consists in the oath by which the party indicted swears to the truth of some matter, and this oath may be said to be the false statement of the statute. Or, in another sense, it may be said that the written statement and the oath of the party that it is true, all constitute the declaration or certificate of the statute, for the falsity of which he is chargeable with perjury and liable to punishment. The previously-prepared writing, his oath to its truth, or the whole taken together, is, in our opinion, a declaration of the party within the meaning of the statute, and may be so well described in the indictment. We are quite satisfied that, as set forth in this indictment, these are material matters under the statute, and if defendant did not believe them to be true when he swore to and subscribed the statement that they were true, that he is guilty of perjury, as declared in section 5392; and we think the word 'declaration' correctly defines such statement. The same rule of construction is applicable to the word 'certificate' used in the statute. It is attempted in argument to raise the question whether the judge of the district court had authority to administer the oath in which the perjury was committed. But it is clear that no such question is certified to us by the judges of the circuit court, and we cannot consider it. U. S. v. Briggs, 5 How. 208; Dennistoun v. Stewart, 18 How. 568. We answer all the questions submitted to us in the affirmative, and it will be so certified to the circuit court.
109.US.468	1. A marshal of th6 United States, who, under a provisional warrant in bankruptcy, has, after receiving a bond of indemnity under General ,Order No. 18, in bankruptcy seized goods as the property of the debtor, and been sued for damages for such seizure, in an action of trespass; i a State court, by a third person, who claimed that the goods were his property at the time of the seizure, cannot maintain a suit in equity in a circuit court of the United States, for an injunction to restrain the further prosecution of the action of trespass, the parties to the suit in equity being citizens of the same State. 2. Such marshal having delivered the goods seized to the assignee in bankruptcy appointed, after an adjudication of bankruptcy, in the proceeding in which the provisional warrant, was issued, and the assignee having sold the goods, under the order of the court in bankruptcy, without giving to the plaintiff in the action of trespass any notice, under § 5063 of the Revised Statutes, of the application for the order of sale or of the sale, and such plaintiff not having brought any action against the assignee to recover the goods, or applied to the bankruptcy court for the proceeds of sale, and the assignee not being sued in the action of trespass, he cannot bring a suit in equity in a circuit court of the United States, joining the marshal as plaifitiff, against the plaintiff in the action of trespass, to have the title to the goods determined, on the allegation that they were transferred to such plaintiff in fraud of the bankruptcy act, and for an injunction restraining the prosecution of that action.	This suit divides itself into two branches—the case of the assignee; and that of the marshal and his deputies. The assignee was not a party to the trespass suit. The plaintiffs in that suit, abandoning all pursuit of the goods and all action against the assignee, brought and continued their suit for damages against the marshal and his deputies. They did not disturb the possession of the goods in the assignee, or claim the proceeds of the goods. Although the bill states that the assignee, on applying to the bankruptcy court for an order to sell the goods, made known to it the facts as to the claim of Leroux and Max Schott thereto, it is not averred that any notice was given to them of the intention to sell or of the sale. It is provided as follows by section 5663 of the Revised Statutes: 'Whenever it appears to the satisfaction of the bankruptcy court that the title to any portion of an estate, real or personal, which was has come into the possession of the assignee, or which is claimed by him, is in dispute, the court may, upon the petition of the assignee, and after such notice to the claimant, his agent or attorney, as the court shall deem reasonable, order it to be sold under the direction of the assignee, who shall hold the funds received in place of the estate disposed of; and the proceeds of the sale shall be considered the measure of the value of the property, in any suit or controversy between the parties, in any court. But this provision shall not prevent the recovery of the property from the possession of the assignee by any proper action commenced at any time before the court orders the sale.' The failure to give any notice to Leroux and Max Schott of the application for the order to sell the goods, although the facts as to their claim were laid before the bankruptcy court, and the fact that no suit was brought against the assignee to recover the possession of the goods from him, are evidence that the bankruptcy court and the assignee did not regard, and could not regard, the case as one where, under section 5063, the title to the goods was in dispute. It was not in dispute as between Leroux and Max Schott of the one part and the assignee of the other part. The former abandoned the goods, and all claim to them or to their proceeds, and the assignee acted on that view in selling the goods without notice. They relied solely on their suit in trespass, and the defendants in that suit relied for protection, in case of adverse result, not on the goods or their proceeds, but on the bond of indemnity which the petitioning creditors had given to the marshal. Under these circumstances, after pleading in the suit in the state court, and procuring a postponement of the trial, the defendants in that suit and the assignee joined in bringing the bill in equity. Had the circuit court of the United States any cognizance of the suit? There was no common interest between the assignee and the other plaintiffs. The assignee was not sued in the state court. When the suit in equity was brought, the marshal had no interest in the goods, and no right to rely on them or their proceeds for idemnity, and no right to look to the assignee for protection. The marshal turned the goods over to the assignee, and did so voluntarily, so far as appears, relying on the bond of indemnity as his protection, and substituting that in place of a retention of the goods, when he might well have insisted on retaining them, if Leroux and Max Schott still claimed title to them, inasmuch as the suit in trespass was brought before the goods were turned over to the assignee. An assignee in bankruptcy has, by section 5129, the right, in case of a transfer of property to a person not a creditor of the bankrupt, in violation of that section, to 'recover the property or the value thereof, as assets of the bankrupt.' Here the assignee had the property, and there was no occasion for him to bring a suit to recover it. By section 4979 a circuit court of the United States has jurisdiction of a suit 'at law or in equity brought by an assignee in bankruptcy against any person claiming an adverse interest, or by any such person against an assignee, touching any property or rights of the bankrupt transferable to or vested in the assignee.' The jurisdiction invoked by the assignee in this case cannot be maintained under section 4979. It does not appear by the bill or the proofs that the defendants claim an interest in the proceeds of the goods adverse to the interest which the assignee claims in such proceeds. When the bill was filed the goods had been sold and were represented by their proceeds in the hands of the assignee. The only interest which the assignee then had touching the goods or in their proceeds was his claim to own those proceeds as assignee. No interest could be adverse to such interest of his unless it was another claim to own or receive those proceeds. The defendants made no such claim. The bill does not allege that they did, but it and the proofs show that from the time they brought the trespass suit they never disputed the right of the assignee to deal with the goods and their proceeds as part of the assets of the estate. Nor is the bill filed to remove a cloud on the title to real estate, or to set aside written instruments of title which might interpose obstacles to the rights of the assignee in the goods or their proceeds. It is enacted by section 630 of the Revised Statutes 'that the circuit court shall have jurisdiction in matters in bankruptcy, to be exercised within the limits and in the manner provided by law.' This refers to the limitations in section 4979. As the bill avers that all the parties are citizens of Michigan, the jurisdiction of the circuit court in this case must be given by the bankruptcy statute or it does not exist. We are of opinion, upon full consideration, that it is not so given, notwithstanding what was said by this court in Ex parte Schwab, 98 U. S. 240. It may, moreover, be said, that if there were jurisdiction by the citizenship of the parties a bill such as this, by the assignee in bankruptcy, to obtain such relief as he asked in respect to his own rights, would not lie, he being in possession, and his right to assert possession and ownership, and to control and dispose of the property and its proceeds, not being questioned or threatened. As regards the marshal and his deputies, apart from the assignee, there is nothing in the bankruptcy statute which authorizes them to invoke the action of the circuit court for any relief by injunction in respect to the suit for trespass. As the assignee had no right conferred by that statute to bring the suit in equity in respect to any claim of his own, he had no right as assignee to bring it in respect to any claim of his co-plaintiffs, nor had all together any right conferred by that statute to bring it. The relief sought by injunction depends wholly, as the bill is framed, on the right of the assignee, as such, to maintain the suit in respect to his own case. If the case as to the marshal and his deputies were one of jurisdiction by citizenship of the parties, it would fall within the principles laid down by this court in Buck v. Colbath, 3 Wall. 334. The provisional warrant being one merely commanding the marshal to seize the property of the debtors, it was for the marshal to determine for himself whether the goods seized were legally liable to seizure under the warrant, and the circuit court could afford him no protection against the consequences of an erroneous exercise of his judgment in that determination. He was liable to suit in any court of competent jurisdiction, for injuries growing out of his mistakes. The state court in which the suit for trespass was brought was such a court, and that suit was an appropriate suit. The parties bringing it were entitled to proceed with that suit in that forum. As was said in Buck v. Colbath, there was nothing in the mere fact that the provisional warrant issued from a federal court, 'to prevent the marshal from being sued in a state court, in trespass, for his own tort, in levying it upon the property of a man against whom the writ did not run, and on property which was not liable to it.' This view was reaffirmed in Sharpe v. Doyle, 102 U. S. 686, and was there applied to a seizure under a provisional warrant in bankruptcy like that in the present case. We have limited our decision to the precise questions presented in this case, without attempting to define the cases in which an assignee in bankruptcy can maintain a suit under section 5129 or under section 4979, or to specify what relief by injunction can be granted to him under the bankruptcy act, in a proper case.
107.US.586	Where the object of a suit in chancery is the recovery of the damages which the complainant alleges that he has sustained by reason of an unlawful and fraudulent conspiracy to cheat him out of his interest in an original invention, which is the subject-matter of the controversy, the bill should be dismissed, as his remedy is at law.	This is a suit in equity, and the case made by the bill may be stated as follows: Ambler, the appellant, and one R. M. Whipple, invented an improved mode of manufacturing gas from petroleum, for which they were about to apply for patents, and being desirous of securing each to the other one undivided half of what they were doing, on the twenty-fourth of May, 1869, entered into an agreement of copartnership to effect that object. The third article of the agreement was as follows: 'Article 3. R. M. Whipple shall have the exclusive and entire 'business management' of the same, so as to include the introduction of said invention to public use, and to secure, as far as possible, the adoption of the same, both in this country and in all other countries; and for which purpose, and all and singular the purposes incident thereto, the said R. M. Whipple shall have full and ample power and authority, and is hereby granted by said Ambler full power and authority, to act for him in the premises, to sign his name, and make his seal to any instrument, and all instruments of writing needful and necessary to carry out the object and intention of this agreement, as fully and entirely as the same may be done by the said Ambler if personally present at the doing thereof; and the said A. I. Ambler hereby ratifies and confirms all and singular whatsoever may be legally and lawfully done in and about the premises.' All patents secured for the invention were to be put into the business and owned by the parties in equal shares. The proceeds of sales and all other profits were to be equally divided. For the purpose of carrying into effect the provisions of the partnership agreement, Ambler, on the twenty-fifth of May, executed to Whipple an assignment of all his interest in the invention and in the patents that might be issued thereon. The agreement and the assignment were both recorded in the patent-office. On the thirteenth of July, 1869, a patent was issued to Whipple & Ambler for 'Whipple & Ambler's Steam Petroleum Gas-generating Apparatus,' which was embraced in their inventions. In September, 1869, Whipple fraudulently determined to exclude Ambler from the benefits of their undertaking, and to accomplish that purpose formed another partnership with one Thomas S. Dickerson, to whom, in October, 1869, a patent was issued for an improved mode of manufacturing gas from petroleum, which was the invention of Whipple & Ambler. Afterwards another patent was issued to Whipple & Dickerson, which came within the scope of the Whipple & Ambler experiments. In this condition of affairs, Ambler, on the fourth of January, 1870, began a suit in equity in the supreme court of the District of Columbia against Whipple & Dickerson, the object of which was to bring the Dickerson and the Whipple & Dickerson patents into the Whipple & Ambler partnership, and to get an account of sales and profits. The supreme court of the district dismissed the bill, but on appeal to this court that decree was reversed at the October term, 1874, and the cause remanded with instructions to enter another decree, 'declaring Whipple & Dickerson to hold in trust for the benefit of Ambler to the extent of one-half of the two patents issued to them,' and 'that an accounting be had as to the profits realized by them, or either of them, from the use or sale, or otherwise, arising from said patents.' Ambler v. Whipple, 20 Wall. 559. A decree was entered in the court of the district on the second of February, 1875, in accordance with this mandate, and afterwards upon an accounting a balance was found due from Whipple of $666,052.35. Whipple is insolvent, and the amount due from him is uncollectible. On or about the twenty-first of April, 1870, Whipple & Dickerson sold and conveyed to James G. Blunt and Merritt H. Insley, of the state of Kansas, the right to use the Dickerson patent in Missouri for $35,000, and on the twenty-third of December, 1871, the right to use the Whipple & Dickerson patent in the same state for the same sum. On the eighteenth of December, 1871, Charles P. Choteau, Gerard B. Allen, Charles H. Peck, Stilson Hutchins, Theodore Laveille, George H. Rea, Albert C. Ellithorpe, John Kupferle, James G. Blunt, M. H. Insley, Charles P. Warner, Frank Gregory, and Oliver B. Filley organized a corporation under the general corporation law of Missouri by the name of the Missouri Liquid Fuel Illuminating Company, with an authorized capital of $500,000, divided into 5,000 shares of $100 each. The persons thus organizing the corporation were, by the articles of association, constituted directors for the first year. On the twenty-third of December, 1871, Blunt & Insley, in consideration of $83,000 in cash, or its equivalent, and $417,000 in capital stock, assigned to this company all their right to the Dickerson and Whipple & Dickerson patents for the state of Missouri. At the same time Whipple & Dickerson agreed with the company to make such conveyance as might be deemed necessary to perfect the title of the company under the assignment from Blunt & Insley. When these several transactions took place all the parties had full notice of all the rights and claims of Ambler in the premises. This suit is brought against Choteau, Harrison, Allen, Peck, Rea, Laveille, Warner, Gregory, and Filley. All the other corporators and directors, or, so far as appears, stockholders, of the Missouri corporation are named as defendants in the bill, but they were never served with process, and have never appeared. Neither Whipple, Dickerson, nor the Missouri corporation is even named as defendant. The persons who are served, and who appear in the cause, hold, or are interested in, the stock of the corporation to the amount of $150,000, or thereabouts. The bill abounds in charges of fraud and conspiracy, in a general way, against all the persons who are named, whether parties to the suit or not, but so far as the defendants served with process are concerned, the only specific allegation to be found is that, being 'incorporators of the Missouri Liquid Fuel & Illuminating Company,' they 'made said purchase, and paid said large sum of money with full knowledge of the trust, and of the fraud and breach of trust aforesaid, [that of Whipple & Dickerson,] and with lawful and timely notice of your orator's legal rights and equitable title therein, without any effort whatever on the part of said directors of said company to protect your orator's share of the purchase money, as they were bound in law, in equity, and good conscience to do in this behalf, and without the knowledge or consent of your orator, and to your orator's damage and injury.' At the opening of the bill it is expressly averred 'that the subject-matter of this complaint, and the foundation and gravamen of this bill, is the franchise, the trust, the breach of trust, the collusion, conspiracy, and fraud between the defendants and said Whipple & Dickerson, as the trustees of your orator, the rights and remedies of your orator against these defendants, and the prayer for relief.' It is then stated 'that this cause is an action on the case in the nature of a conspiracy, founded upon the fraudulent intention and specific acts of the defendants to cheat, swindle, and defraud your orator of his franchise, and the rights in the patent and trust property aforesaid, and that said plan consists in an agreement with a common design to do an unlaw ful act, and which plan, agreement, and conspiracy, being a common design to do an unlawful act, was fully carried out, as will hereafter more fully appear, to the great damage and injury of your orator.' It is nowhere alleged that these defendants had any actual connection with the transactions of Whipple & Dickerson otherwise than as corporators, stockholders, and directors of the Missouri corporation, though it is stated that they 'gave to such fraudulent firm [Whipple & Dickerson] credit, character, and support by dealing with them,' etc., and that they 'took no steps whatever, legal or otherwise, to recover said property or the proceeds thereof, or to stay Whipple & Dickerson in the pursuit and furtherance of the fraud in the waste of the proceeds of the trust,' etc. The prayer is that the defendants may be enjoined 'from proceeding further with any dealings with the said partnership and trust property aforesaid,' and 'that the damages to your orator for the be taken thereof before the master, * * * and that your orator, upon the final hearing, be allowed, adjudged, and decreed damages therefor.' This is the substance of all there is material in the mass of irrelevant matter that incumbers the record and fills the voluminous argument filed by the appellant in his own behalf. Upon full consideration we have no hesitation in saying that it presents no case for such relief in equity as is asked. If, as is more than once distinctly alleged, the object of the suit is to recover damages for an unlawful and fraudulent conspiracy to cheat Ambler out of his interest in the original invention which is the subject-matter of the controversy, the remedy is clearly at law and not in equity. If an account of profits is wanted, and an injunction against the further use of the patented inventions under the transfers from Whipple & Dickerson, then the suit should have been against the Missouri corporation in its corporate capacity, and not against a part only of its stockholders and directors individually. If the object is to charge these defendants for the profits made by Whipple through his breach of trust, then he is a necessary party, and nothing can be done in his absence. In any event, these defendants are but purchasers from Whipple of specific interests in the property which he held in trust for himself and Ambler. While the allegations of fraud in their general terms are as broad as language can make them, specifically they are confined by other allegations to the use of the patented invention in Missouri by the Missouri corporation, of which the defendants are stockholders and directors. It is not in any manner alleged or claimed that the defendants have profited by what Whipple has done, except through the title acquired by the conveyance to Blunt & Insley, and from them, with the consent of Whipple & Dickerson, the faithless trustees, to the corporation. No effort is made to set aside these conveyances. It is conceded that Blunt & Insley actually paid Whipple & Dickerson $70,000 for the assignments which were made, and it is fairly to be inferred that in the accounting had under the decree of this court in Ambler v. Whipple, Whipple has been charged with the proceeds of this sale. But, whether that be so or not, no case has been made by the loose and general allegations in this bill for relief against these defendants. The words 'fraud' and 'conspiracy' alone, no matter how often repeated in a pleading, cannot make a case for the interference of a court of equity. Until connected with some specific acts for which one person is in law responsible to another, they have no more effect than other words of unpleasant signification. While in this case the offensive words are used often enough, the facts to which they are applied are not such as to make the defendants answerable to the complainant for the damages and other relief he asks. The decree of the circuit court sustaining the demurrer and dismissing the bill is affirmed.
109.US.90	After many conversations, and after a draft agreement had been made, A, in 1870, in writing, granted to B a license to make, use, and sell, and vend to others to sell, an invention in defined districts. In 1873 B discovered that the agreement gave him no exclusive rights, which it was the purpose of both parties to have done. He notified A, and A at once offered to grant such right for the original consideration. In November, 1873, B refused to accept a new agreement, and took steps to terminate the existing" one. A thereupon sued B for royalties claimed to be earned under it. B filed a bill in equity, claiming that there was a mistake in the agreement, and praying to have!i t cancelled and A restrained from prosecuting an action under it: Held, That there was no mistake between the parties as to the agreement madd; that the minds of the parties met, and an agreement was made, although the legal effect of it was different from what was intended ; that A was not in.default ; and there was no ground for the relief prayed for.	This appeal is from a decree dismissing the complainant's bill, and the record discloses the following as the facts material to the determination of the controversy: The appellees, in 1870, being British subjects, were owners of letters patent of the United States bearing date January 4, 1870, granted to one Dennett, for the term of 17 years from August 13, 1863, for an improvement in the construction of concrete arches for building. On November 2, 1870, they entered into a written contract with the appellant, an architect, then residing in Albany, New York, but at the time of filing this bill a citizen of California. By this contract the appellees granted to the appellant, his executors, administrators, and assigns, during the residue of the unexpired term of the letters patent, 'full and free liberty, license, and authority to make, use, and sell, or vend to others to be sold,' the said invention within the divisions of the United States, as thereinafter specified, or one or more of them, in the manner and according to the provisions and agreements thereinafter contained, and upon the payment of the sums of money as therein provided, and not otherwise. For the purposes of the license the territory of the United States was divided into four districts, named, A, B, C, and D, respectively, and a royalty of 10 shillings sterling per square of 100 square feet was to be paid for all work actually done under the patent, and which, from certain specified dates, it was agreed should amount to an annual minimum sum of 500, and not to be payable in excess of an annual maximum sum of 1,000 in each of such divisions. It was also stipulated that the appellant might surrender the license at any time upon giving six months' notice, and that the appellees might revoke it upon any default of the appellant after 30 days' notice. It appears that this contract was entered into after many conversations between the parties, and after a draft agreement had been prepared, and submitted to the appellant for examination. Upon his suggestion it was amended and finally executed. Various unsuccessful efforts appear to have been made by the appellant while at Albany, and after his removal to San Francisco, and also by one Fuller, who acted as his agent at Albany, to introduce the patent; and some correspondence took place between the parties in regard to its progress and prospects. This correspondence, as well as the negotiations which led to the execution of the contract, was conducted on the part of the appellees by Frederick Ingle; and it was to him that the following letter was addressed by the appellant: 'SAN FRANCISCO, April 26, 1873. 'Frederick Ingle, Esq., 5 Whitehall, London, England: 'DEAR SIR: It now turns out, just as Mr. Fuller and myself are about to close negotiations for the sale of your patent-right, that I have no power to sell. Will you, therefore, send me the proper papers from your firm, stating that you will not grant licenses to any one else in the United States? I inclose you an eminent legal opinion thereon. Mr. Fuller had arranged for the sale of Massachusetts, which includes Boston; but we wait for your proper authority, which must be exclusive, or no value can be attached to the license I hold. Of course I am aware of the understanding which I have stated your firm would not go back on, but then the parties purchasing hold that it is not exclusive. In like manner I am unable to close with parties here for section D. I have had so much trouble with this matter, and now that it appeared to be in a good way to be productive of profit, this annoyance arose. You can, however, remedy it in the way prescribed. 'Yours, very truly, AUGUSTUS LAVER. 'P. S. Send the papers to Mr. Fuller, at Albany, and then he will send me duplicates. A. L.' This letter seems to have been received by Ingle, and in reply he sent by cable the following: 'MAY 6, 1873. 'Fuller, Architect, Albany, New York: 'Dennett will alter agreement, giving Laver exclusive right. 'ROBERT DENNETT & CO.' Fuller had evidently written a letter to Ingle, to the same effect, about the same time, for, although it is not contained contained in the record, Ingle's reply to it, written the day he sent the cable message, was produced and read in evidence. In this letter, dated May 5, 1873, he says, referring to the objection to the terms of the license, that 'there is no objection on our part to alter it in any way to suit the requirements of the case.' He adds: 'You will bear in mind that this lease was granted to Mr. Laver to pay as an annual royalty. If it had been proposed then to purchase out and out, I dare say the terms to the exclusive right would have been more precise; at any rate, our intention was for Mr. Laver to have the exclusive right, (in all our negotiations,) and when the document was signed we looked upon it as so settled, unless he elected to throw it up before certain dates for the respective sections as specified in the agreement. He had the document to examine before signing it, and could have made the objection then. At any rate you will, I think, give us credit for having faithfully carried out both the letter and spirit of the agreement. We have had many applications from parties for permission to work the patent in the United States since October, 1870, the date of our agreement, but have had to reply in each case that our arrangements as to licensing were made. * * * I shall write to our solicitor, Mr. Van Santvoord & Hauff, of Times Building, Park Row, New York, and instruct him to get whatever you require with regard to the specification. I don't know in what respect it is incomplete. The agreement can be altered to give any parties who propose to purchase the most absolute rights, on payment of the purchase money of section B.' He then proceeds, in answer he says to a request to that effect, to give the prices for each division, upon an out and out purchase of a gross sum; and referring to Laver's statement that Fuller was on the point of completing the negotiations for division B, he says: 'To faciliate completion of the matter, had you not better write to or see Mr. Van Santvoord, whom we will instruct to give you as much assistance as he can. We could not, of course, undertake any litigation in respect of infringements, after we had disposed of our rights for a fixed sum.' He says, further: 'Our wishes have always been to give him exclusive rights, and I thought that the agreement expressed as much before you raised the question. At any rate we are willing to alter it to faciliate your negotiations. The question is, how is it to be done? One plan is for us to send power of attorney out to Mr. Van Santvoord, and tell him to alter the agreement and sign for us. Another, and I think a preferable plan, is to write to him to prepare two fresh copies of agreement, distinctly giving Laver exclusive rights, and referring to the old agreement, which will be thereby canceled. He will them let you see the alterations. One copy must be sent to Laver for signature, and another to us, and on the return you and Van Santvoord can exchange them. You must clearly understand, however, that we shall not consent to any other alterations, or to introduce any fresh clauses.' On May 9, 1873, Ingle wrote to the appellant as follows: 'DEAR SIR: Yours of twenty-ninth Mrach came duly to hand, with inclosures, and I delayed answering it for a week or two, as I was expecting to hear from Mr. Fuller. I have now heard from him, and you no doubt know to what effect. He complains of the agreement not giving you exclusive rights. I think it expressed enough for the purpose contemplated at the time, and you were satisfied with it. At any rate, we intended to give you exclusive rights, and have in all good faith acted up to that intention, inasmuch as we have refused many offers of agency since October, 1870, the date of our agreement with you. I suppose Mr. Fuller will send you the letter I wrote him in reply; at any rate I will write him by this post a line requesting him to do so; then you will see exactly what I propose to do. I may say that I have also by this post instructed Mr. Van Santvoord, our solicitor in New York, to prepare full agreements, giving you exclusive rights, and send them to each of us to be resigned and exchanged; when this is done they will supersede the others, and I hope will be sufficient for Mr. Fuller's purpose. 'Speaking generally, our view with regard to this matter is this, (I mean Dennett's and my own,) that we gave you a liberal margin of time to make preliminary arrangements, and asked for only a moderate royalty on each section. You had the option of holding or abandoning up to certain dates. If you had decided to surrender, we should have been losers of two years of valuable time, and should have had all our work to begin over again. As you elected to keep the patent-right, you could hardly expect us to forego the just claims for which we stipulated, after such very liberal reservations in your favor. We do not suppose for a moment that you expect this. We do not wish to press you hardly in the matter, but it is really time now that some tangible return was made to us; of course, if the section B is sold at once, and the money paid over, as we hope it will be, we forego any claim for royalties already due on that section.' wrote to their solicitors in New York, giving instructions in reference to drawing up a fresh agreement, giving the appellant the exclusive rights which he required; but that neither the appellant nor Fuller, his agent, communicated with the solicitors on the subject. It was not until November 3, 1873, that appellant wrote to Ingle refusing to sign any new agreement, and claiming that the defect in the original agreement had resulted in the loss of the sale of the patent in Massachusetts for the price of $30,000, and intimating that, in con sequence thereof, the appellant was entitled to trest the whole matter as at an end. On October 12, 1874, the appellees, having in the mean time, by further correspondence, insisted upon their rights under the contract, and demanded payment of the royalties which had accrued, brought an action in the circuit court of the United States for the district of California, against the appellant, to recover the amount due on account thereof. And on September 3, 1875, the appellant filed this bill in equity in the same court, in which it was claimed that, by reason of the mistake in omitting from the contract a grant of the exclusive right to the appellant to use and sell the said invention under the said patent, the said indenture was not the agreement of the appellant, and that in November, 1873, because of said defect, he had surrendered said invention and indenture, and all his rights thereto and thereunder, to the appellees. The bill prayed that the indenture be ordered to be canceled, as executed by mistake, and that the appellees be perpetually restrained and enjoined from the prosecution of the action at law upon it. The chief, if not the only, instance in which it is alleged the defect in the license actually operated to the injury of the appellant, is the loss of the sale of the patent for the New England states; and as to that the proof wholly fails. The only witness examined on the subject is the appellant himself, who knew nothing of it, except as he learned it from Fuller, his agent; and his evidence, being hearsay, cannot be regarded. The parties with whom the negotiations took place, and who, it is said, refused to proceed after discovering the defect in the license, are not examined nor even named. Fuller, the agent of the appellant, who personally conducted the negotiation, is not examined as a witness at all; and in his letter to Ingle of June 23, 1873, gives an entirely different account of the reasons for the loss of the sale. He there says: 'Your decision not to protect the patent renders it valueless, even if it could not be infringed. The duration of the patent is so short no parties would dream of paying large sums for it. Acting as Mr. Laver's attorney, I did the best I could to dispose of it for New England states. That is now abandoned unless the patent can be extended.' There is no proof of fraud or misrepresentation on the part of the appellees, and all charges to that effect in the bill are substantially withdrawn by the appellant in his testimony. It is claimed, however, on the part of the appellant, that he has a strict right in equity to the relief prayed for in his bill, on the ground that no contract was ever in fact entered into, the minds of the parties never having met upon the same terms. But there is no foundation for such a contention. The minds of the parties did meet. There was in fact an actual agreement, the terms of which were perfectly well understood by both parties. They acted upon that understanding from the time the instrument was executed; and when the appellant first discovered that it did not have the legal effect intended, and gave notice to appellees accordingly, there was no controversy between them on the subject. The common intention was at once admitted and the necessary correction promptly offered. There was, no doubt, a mistake, but it was in the instrument which undertook to express the agreement, and not in the agreement itself. It did not relate to any matter of fact which was the basis of the contract, an error in regard to which would be fundamental, and therefore fatal, but affected only the document which professed to express, but did so incorrectly, the actual intention of both parties. It is equally wide of the mark to say, as it was argued, that the contract has failed by reason of the failure of the consideration. The appellant cannot say that he did not acquire something by reason of the license, although his right was not, as it was intended to be, exclusive. But, so far as appears in the case, he had the same benefits and advantages he would have enjoyed if the instrument had contained the exclusive grant it was supposed to secure; for the parties on both sides acted upon that construction, and, as we have already shown, no actual loss is proven to have arisen to the appellant by virtue of the defective assurance. That the instrument imperfectly expressed the agreement of the parties was not the exclusive fault of the appellees. It was the duty of the appellant to have discovered the error before executing the contract. He did not, in fact, find it out until after two years from its date; and then, applying for its correction, failed to avail himself of the offer of the appellees, promptly made, in response to his demand to execute a corrected agreement. The only equity which the appellant could claim was to have the mutual mistaken in the language of the instrument corrected, until some default had occurred on the part of the appellees. But they were in no default. They offered to make the correction as soon as they had notice of the mistake; but the appellant declined to accept it. After the further lapse of more than six months, he insisted on his right to put an end to the agreement itself. This he was in no position to do. His delay to assert such a claim, if his right had been otherwise better founded, constituted such laches as would, at least, greatly weaken his title to relief, if it did not amount to a bar; and coupled with the loss to the appellees of the value of their own rights under the patent, which cannot be restored, would make it inequitable, as against them, to absolve the appellant from the legal obligation of his contract. We see no ground in the facts of the case for the application of the principles and authorities invoked by the appellant as a warrant to grant him the relief for which his bill prays. The decree is accordingly affirmed.
107.US.110	1. Where the Circuit Court quashes an indictment, found against the prisoner in a State court, wherefrom the cause was on his petition removed, it has no jurisdiction to proceed against him for the crime against the State wherewith he was charged. 2. Where the highest court of the State had declared to be unconstitutional her statute whereby, because of their race and color, citizens of African descent were excluded from grand and petit juries, and it had further decided that the officer summoning or selecting jurors must disregard race or color, a person of that descent against whom a criminal prosecution was subsequently instituted in the State court has no just ground for declaring, in advance of a trial, that he was denied, or that in the State tribunals he cannot enforce, the equal civil rights secured to him as a citizen by the Constitution or the statutes of the United States. The case was not, therefore, removable to the Circuit Court, nor should the panel of petit jurors be set aside simply on the ground that it consisted wholly of white persons. 3. Where pursuant to such a statute, and before its unconstitutionality was so declared, the grand jurors were selected who found the indictment against the prisoner, a person of that descent, the court of original jurisdiction should, on his motion, set aside the indictment.	This court shares the regret expressed by counsel that the record is in some respects so meager, and in other respects so confused, that it is impossible to ascertain what facts were before the inferior state court when it passed certain orders that are commented upon in argument. Some of those orders refer to affidavits and other documents that are not made in any form a part of the record. The difficulties in our way have been, in part, removed by the frank concessions of counsel on both sides, and we cheerfully acknowledge the aid we have received from them in our search through the record for the substantial questions to be determined. We may also add that our embarrassment has been increased by the consideration that the case is one of no small moment, involving, as it does, on the one hand, the life of a citizen, and, on the other, the question whether the judicial tribunals of a state have denied to a prisoner rights guarantied by the constitution of the United States. Whether the record before us shows such a denial we will now proceed to inquire. John Bush, a citizen of African descent, was indicted in 1879, in the circuit court for Fayette county, Kentucky, for murder. Upon his first trial the jury, as was stated by counsel, being unable to agree, were discharged. At the next trial he was found guilty and was condemned to suffer death. Upon appeal to the court of appeals of Kentucky that judgment was reversed and a new trial was ordered for errors committed by the court of original jurisdiction: First, in neglecting to instruct the jury as to involuntary manslaughter, as distinguished from murder, the evidence being such as to authorize the jury to find the accused guilty of either offense; second, in the definition of malice given to the jury; third, in failing properly to instruct the jury whether the death of the deceased was necessarily or probably caused by the wound, or ensued from scarlet fever negligently communicated by her physician. Bush v. Com. 75 Ky. 268. Upon the return of the case to the inferior state court the accused, as we infer from the record, filed a petition for its removal into the circuit court of the United States. That petition, we are informed by counsel, was filed May 24, 1880. It, however, is not in the record. We assume that it was based upon section 641 of the Revised Statutes of the United States, which authorizes, in general, the removal into such court of any criminal prosecution, commenced in a state court, for any cause whatever, against any person who is denied or cannot enforce in the judicial tribunals of the state, or in the part of the state where the prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within their jurisdiction. The record, however, does state that copies of all the proceedings in the inferior state court were filed by the accused in the federal court, and that he was brought before the latter tribunal upon writ of habeas corpus addressed to the jailer having him in custody. On the nineteenth day of October, 1880, the accused, by his counsel, moved in the federal court that the trial proceed. That motion was denied, and the response by the jailer to the writ of habeas corpus was adjudged to be insufficient. The reasons which controlled this action are set forth in the following order: 'And it appearing to the court, from the transcript of the record heretofore filed, that the indictment herein was found by a grand jury summoned under and in accordance with the provisions of section 1, c. 62, Gen. St. Ky., which exclude all other than white citizens from being summoned, or serving thereon, the court is of opinion that said law is a violation of the four-teenth amendment to the constitution of the United States, and orders said indictment quashed. The marshal of the court is ordered to return the said John Bush to Lexington, Kentucky, as speedily as possible, and there release him. He will, however, before setting him at liberty, notify the commonwealth's attorney; or, in his absence, the county attorney; or, in his absence, the county judge. This notice shall be in writing, stating the time and place of his release, and he will report his action to this court. The defendant excepts to so much of this order as requires his return to Lexington, Kentucky.' The accused was subsequently rearrested by the state authorities, and a new indictment was returned for the same offense. At the term of the court held on the sixth of December, 1880, he tendered an affidavit, stating that 'on the fourth day of February, 1879, the grand jury of Fayette county returned into this court an indictment charging him with the same offense, and upon the same statement of facts charged herein; that he, as he had a right to do under the 641st section of the Revised Statutes of the United States, filed in this court his petition for a transfer of his case to the United States circuit court for this district for trial under said indictment; that the prayer of his petition was granted by said circuit court, on which, under said statute, all further proceedings were to cease forever; that the jurisdiction of said United States circuit court, to which, under said statute, this cause was removed for the trial of this offense, is superior to and in exclusion of that of this court, and, that court having taken jurisdiction, this court has no jurisdiction to try the same.' Copies of the orders of the United States circuit court were made part of that affidavit. The court refused its permission to file such affidavit, and to that ruling the accused excepted. The case was then continued to the succeeding February term, when a special venire issued, commanding the sheriff to summon '150 good and lawful jurors from whom to select a jury for the trial of this [Bush's] case.' But at that term the prosecution was continued, and on May 16, 1881, the case being again called for trial, the sheriff was ordered to summon 'a panel of 75 additional jurors from whom to select a jury for the trial of this case, and in executing this order he will proceed in his selections without regard to race, color, or previous conditions of servitude.' We next find in the record of proceedings in the state court, under date of May 18, 1881, this order: 'And afterwards, at a term of said court held for said circuit, May 18, 1881, the commonwealth came, by attorney, and the defendant appeared in custody. The defendant moves the court to set aside the indictment herein against him, because there was a substantial error committed to his prejudice in the selection and formation of the grand jury which found said indictment, in that the said grand jury was selected and formed in violation of the constitution of the United States, and therefore is unconstitutional, null, and void, because all citizens of the United States and state of Kentucky, and resident in Fayette county, who were not of the class known as white, though eligible for such service, were excluded from the lists from which said grand jury was selected, and thereby the rights, privileges, and immunities of all such citizens so residing, who did not belong to the class known as white, and of the defendant, who is not white, although a citizen of the United States and of Fayette county, Kentucky, were abridged, because he and they are not white, and on account of his and their race and color, contrary to the constitution of the United States and the laws in such cases made and provided; which was overruled by the court, and defendant excepts.' The accused then moved to set aside the panel of petit jurors, upon grounds set forth in the following order entered on the same day: 'The defendant now moves the court to set aside the panel of petit jurors selected and summoned to try him herein, because there was a substantial error committed to his prejudice, in that said jurors were not summoned as required by law, in that all citizens of the United States and state of Kentucky, resident in Fayette county, of the African race, of which there are very many eligible and qualified to serve as jurors in Fayette county, and to which race this defendant belongs, were excluded and not summoned by the officers whose duty it was to select and summon said panel to serve on said panel from which the jury to try defendant was to be selected, but only such citizens eligible and qualified which belonged to the class known as white were selected and summoned by such officers. Defendant filed a petition for the transfer of this case to the circuit court of the United States for Kentucky; which motion was overruled, and defendant excepts.' The trial proceeded, and the jury returned a verdict of guilty of murder, and, under the power vested in them by the laws of Kentucky, fixed the punishment at death. A judgment having been rendered accordingly, a motion for a new trial was made and overruled. Upon appeal to the court of appeals the judgment was affirmed. This statement of facts is quite sufficient to indicate the grounds upon which we rest our determination of such of the questions raised by the assignment of errors as we deem it necessary to consider. 1. The proposition in behalf of the accused to which we will first direct our attention is that the removal of the prosecution, under the first indictment, into the circuit court of the United States—although the indictment was there quashed—operated to divest the state court of all jurisdiction thereafter, under any circumstances whatever, to try him for the crime charged. Such a construction of section 641 is wholly inadmissible. The prosecution against Bush could only have commenced in the judicial tribunals of Kentucky. The crime for which he was indicted is an offense against the laws of that state, not against those of the United States. It is not one originally cognizable in the courts of the Union. The removal of the first indictment into the federal court was competent only because at that time the accused was denied, by the statutes of Kentucky, rights secured to him by the constitution and laws of the United States. And when the federal court in that mode acquired jurisdiction to proceed with the prosecution as if there commenced, its authority was limited to the trial of the indictment so removed. That court had, pending the prosecution therein, the same power over the indictment that the state court could have exercised had there been no removal. When, therefore, the federal court, in the exercise of the discretion which it unquestionably had, quashed the indictment, it was without jurisdiction further to proceed against the defendant for the crime. He could not have been held for indictment by a grand jury in that court for the obvious reason, already suggested, that his offense was not one against the United States, but against Kentucky. It was for the authorities of the latter alone to determine whether he should be again indicted, or the prosecution abandoned. It follows that there was no error in the order directing the prisoner to be returned to the county in which he was originally indicted. That course was due to the state, to the end that its authorities, being duly notified, might take such further action in the premises as was expedient. U. S. v. McBratney, 104 U. S. 624; Coleman v. Tennessee, 97 U. S. 519; U. S. v. Cisna, 1 McLean, 265. 2. But it is contended, upon behalf of the accused, that his petition for removal, filed after the second indictment was returned, should have been granted, and that the state court could not thereafter rightfully proceed. The petition referred to is doubtless the one described in the order of May 18, 1881. But the record contains no copy of it; nor did it appear in the record sent to the court of appeals of Kentucky. The same question having been raised in that court, it replied properly that 'an inspection of the petition is essential to determine whether it contained allegations sufficient to authorize a transfer; and, in its absence, it must be presumed that it was defective in the allegation of jurisdictional facts, and therefore that the court below did right to disregard it.' But there is another and distinct ground upon which that petition, assuming that it was based upon scetion 641, was properly disregarded by the inferior state court. The court of appeals of Kentucky, in Com. v. Johnson, 78 Ky. 511, decided June 29, 1880, (and hereafter more fully referred to,) had declared that the statute of Kentucky, excluding citizens of African descent from grand and petit juries because of their race or color, was unconstitutional, and that thereafter all officers charged with the duty of selecting or summoning jurors must so act without regard to race or color. That decision was binding as well upon the inferior courts of Kentucky as upon all of its officers connected with the administration of justice. After that decision, so long as it was unmodified, it could not have been properly said in advance of a trial that the defendant in a criminal prosecution was denied or could not enforce in the judicial tribunals of Kentucky the rights secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within their jurisdiction. The last indictment was consequently not removable into the federal court for trial under section 641 at any time after the decision in Com. v. Johnson had been pronounced. This point was distinctly ruled in Neal v. Delaware, 103 U. S. 392-3, and is substantially covered by the decision in Virginia v. Rives, 100 U. S. 319. If any right, privilege, or immunity of the accused, secured or guarantied by the constitution or laws of the United States, had been denied by a refusal of the state court to set aside either that indictment or the panel of petit jurors, or by any erroneous ruling in the progress of the trial, his remedy would have been through the revisory power of the highest court of the state, and ultimately by that of this court. Virginia v. Rives, 100 U. S. 319; Neal v. Delaware, 103 U. S. 393. 3. It is also assigned for error that the court of original jurisdiction erred in overruling the motion to set aside the panel of petit jurors. We have seen that the ground of this motion was that the petit jurors were not selected and summoned as required by law, in that all citizens of African descent in the county, very many of whom were eligible and qualified to serve as jurors, were excluded from the panel by the officer charged with the duty of selecting and summoning the petit jurors, and that only white citizens were selected and summoned. It is sufficient for this assignment to say that the motion was properly overruled, for the reason, among others, that the grounds upon which it was rested do not clearly and distinctly show that the officers who selected and summoned the petit jurors excluded from the panel qualified citizens of African descent because of their race or color. It may have been true that only white citizens were selected and summoned, yet it would not necessarily follow that the officer had violated the law and the special instruction given by the court 'to proceed in his selection without regard to race, color, or previous condition of servitude.' There was no legal right in the accused to a jury composed in part of his own race. All that he could rightfully demand was a jury from which his race was not excluded because of their color. Virginia v. Rives, 100 U. S. 323. The allegation that colored citizens were excluded, and that only white citizens were selected, was too vague and indefinite to constitute the basis of an inquiry by the court whether the sheriff had not disobeyed its order by selecting and summoning petit jurors with an intent to discriminate against the race of the accused. This motion was, therefore, properly overruled. 4. But the most important question raised by the assignments of error is that which relates to the overruling of the motion made before the trial to set aside the indictment because found by a grand jury selected and formed upon the basis of excluding therefrom, because of their color, all citizens of the African race resident in Fayette county and eligible for such service. In several cases heretofore decided in this court we have had occasion to consider the general question whether the fourteenth amendment, and the laws passed by congress for the enforcement of its provisions, do not prohibit any discrimination, in the selection of grand and petit jurors, against citizens of African descent because of their race or color. In Neal v. Delaware, 103 U. S. 386, we said—commenting upon Strauder v. West Virginia, Virginia v. Rives, and Ex parte Virginia, 100 U. S. 303, 313, 319—that a denial to citizens of African descent, because of their race, of the right or privilege accorded to white citizens, of participating as jurors in the administration of justice, is a discrimination against the former inconsistent with the amendment, and within the power of congress, by appropriate legislation, to prevent; that to compel a colored man to submit to a trial before a jury drawn from a panel from which is excluded, because of their color, every man of his race, however well qualified by education and character to discharge the functions of jurors, is a denial of the equal protection of the laws; and that such exclusion of the black race from juries, because of their color, is not less forbidden by law than would be the exclusion from juries, in the states where the blacks have the majority, of the white race, because of their color. It was also said in that case that 'the presumption should be indulged, in the first instance, that the state recognizes, as is its plain duty, an amendment of the federal constitution, from the time of its adoption, as binding on all of its citizens and every department of its government, and to be enforced within its limits, without reference to any inconsistent provisions in its own constitution or statutes.' 103 U. S. 389. But it was further said: 'Had the state, since the adoption of the fourteenth amendment, passed any statute in conflict with its provisions, or with the laws enacted for their enforcement; or had its judicial tribunals, by their decisions, repudiated that amendment as a part of the supreme law of the land, or declared the acts passed to enforce its provisions to be inoperative and void,—there would have been just ground to hold that there was such a denial, upon its part, of equal civil rights, or such an inability to enforce them in those tribunals, as, under the constitution and within the meaning of that [section 641, Rev. St.] section, would authorize a removal of the suit or prosecution into the circuit court of the United States.' 103 U. S. 392. Again, it was declared that a denial upon the part of the officers of the state, charged with duties in that regard, of the right of a colored man 'to a selection of grand and petit jurors without discrimination against his race, because of their race, would be a violation of the constitution and laws of the United States, which the trial court was bound to redress. As said by us in Virginia v. Rives, 'the court will correct the wrong, will quash the indictment or the panel; or, if not, the error will be corrected in a superior court, and ultimately in this court upon review." 103 U. S. 394. Guided by these principles, we proceed to inquire whether there was anything in the action of the state, by means of legislation or otherwise, subsequent to the adoption of the fourteenth amendment, that requires us to hold, as matter of law, that in the selection and formation of the grand jury which returned the last indictment, there was such a discrimination against the plaintiff in error because of his race as made it the duty of the court to sustain the motion to set aside that indictment. By the Revised Statutes of Kentucky, which went into effect on the first day of July, 1852, and were in force when the fourteenth amendment became a part of the national constitution, no one was competent to serve as a petit juror who was not 'a free white citizen,'—2 Rev. St. Ky. (Stanton's Ed.) 77;—and none except citizens could serve on a grand jury,—2 Rev. St. Ky. (Stanton's Ed.) 75, 77. By the same statutes it was provided that all free white persons born in Kentucky or in any other state of the Union, residing in that state, all free white persons naturalized under the laws of the United States residing there, and all persons who have obtained a right to citizenship under former laws, and every child, wherever born, whose father or mother was or shall be a citizen of Kentucky at the birth of such child, shall be deemed citizens of that state. 1 Rev. St. Ky. (Stanton's Ed.) 238. So that, by the law of Kentucky at the adoption of the fourteenth amendment, no citizen of the African race was competent to serve as a grand juror. The Revised Statutes of Kentucky were superseded (certainly as to the selection of grand and petit jurors) by the General Statutes, which were formally enacted as the law of the state, and went into effect on the first day of December, 1873. These—while declaring, in conformity with the fourteenth amendment, all persons born or naturalized in the United States and subject to the jurisdiction thereof, if residing in Kentucky, to be citizens of that state re-enacted the disqualification of colored persons as petit jurors, and also provided that 'no person shall be qualified as a grand juryman unless he be a white citizen.' Gen. St. Ky. 570. And in the new Criminal Code of Practice of Kentucky, which went into effect January 1, 1877, it is expressly provided that 'the selecting, summoning, and impaneling of a grand jury shall be as prescribed in the General Statutes.' Section 101. It thus appears that the legislature of Kentucky, after the adoption of the fourteenth amendment and notwithstanding the explicit declaration therein that 'no state shall deny to any person within its jurisdiction the equal protection of the laws,' twice expressly enacted that no citizen of the African race should be competent to serve either as a grand or petit juror. And these re-enactments of the prior laws excluding citizens of that race from service on grand or petit juries remained unchanged by legislation in that commonwealth until the passage of the act approved January 26, 1882, whereby the word 'white' was stricken out of the sections of the General Statutes prescribing the qualifications of grand and petit jurymen. In this connection it is necessary to recur to the case of Com. v. Johnson, determined, as we have seen, in the court of appeals of Kentucky on the twenty-ninth of June, 1880. In that case it was held, upon the authority of Strauder v. West Virginia, 100 U. S. 303, (decided on the first day of March, 1880,) that so much of the statute of Kentucky 'as excludes all persons other than white men from service on juries is unconstitutional, and that no person can be lawfully excluded from any jury on account of his race or color.' The learned court then proceeded: 'This question has not been heretofore passed on by this court, and as the duty of selecting and summoning juries is devolved upon merely ministerial officers, we ought to assume that, in performing their duties, they obeyed the statute as enacted by the legislature, and that they excluded colored persons from the jury because the statute declares them to be incompetent, and consequently that the appellee was deprived by the statute of a right which the supreme court holds is secured to him by the constitution. 'But the word 'white,' as found in our jury laws, being now declared to be no part of that law, it will be incumbent on all officers charged with the duty of selecting or summoning jurors, to make their selections without regard to race or color; and when juries are hereafter selected and summoned, it ought to be presumed that the officers did their duty, and ignored the statute so far as it is herein held to be unconstitutional, and that they have not excluded any person from the jury on account of his race or color.' 78 Ky. 511. The indictment upon which the plaintiff in error has been tried, convicted, and sentenced to suffer death, was returned by a grand jury selected by jury commissioners who were appointed by the state court of original jurisdiction at its May term, 1880. It was therefore found by grand jurors who were selected prior to the decision in Com v. Johnson. The names of the grand jurors so selected were reported to the court at that term as the grand jury for the succeeding term, at which the indictment upon which Bush was tried was returned. So that the grand jurors who found the indictment were selected when statutes of Kentucky, re-enacted after the adoption of the fourteenth amendment, expressly restricted jury commissioners in their selection of grand jurors to white citizens. Further, they were selected at a time when, according to the rule announced by the highest court of Kentucky, it should be assumed that the officers charged with the duty of selecting grand jurors obeyed the local statute by excluding from the list, because of their race, all citizens of African descent. These considerations bring the case within the principles announced in Neal v. Delaware. The presumption that the state recognized the fourteenth amendment from the date of its adoption to be binding on all its citizens and every department of its government, and to be enforced within its limits without reference to any inconsistent provisions in its own constitution and laws, is overthrown by the fact that twice after the ratification of that amendment the state enacted laws which in terms excluded citizens of African descent, because of their race, from service on grand and petit juries. It was not until after the grand jurors who returned the indictment against Bush had been selected, that the highest court of Kentucky, speaking with authority for all the judicial tribunals of that commonwealth, declared that the local statutes, in so far as they excluded colored citizens from grand and petit juries because of their race, were in conflict with the national constitution. But upon this branch of the case the argument by counsel for the commonwealth of Kentucky is that the record does not show, by a bill of exceptions or otherwise, that any proof whatever was offered in support of the motion to set aside the indictment; and, consequently, that in disposing of that motion, as presenting simply a question of law arising upon the face of the local statutes, the presumption is that the jury commissioners in their selection, at May term, 1880, of the Fayette circuit court, of grand jurors for the succeeding term, respected the decision in Strauder v. West Virginia and similar cases, and therefore disregarded the statutes of Kentucky. The force of this position would be greatly strengthened if the record furnished any evidence that the court gave to those commissioners such instructions as were given to the sheriff in May, 1881, when that officer was required to select and summon petit jurors for the trial of Bush. We are of opinion that the rule announced by the court of appeals in Com. v. Johnson is consistent with sound reason and public policy; and, in conformity therewith,—in the absence of any evidence that the selection of grand jurors in May, 1880, was in fact made without discrimination against colored citizens, because of their race,—it should be assumed that the jury commissioners then appointed followed the statutes of Kentucky so far as they restricted the selections of grand jurors to citizens of the white race. For these reasons it is adjudged that the court of original jurisdiction erred in overruling the motion to set aside the indictment; and, consequently, that the court of appeals of Kentucky erred in affirming its judgment. The judgment of the court of appeals of Kentucky is reversed, and the cause remanded to that court, to be thence remanded to the Fayette circuit court, with directions to set aside the indictment. FIELD, J., adheres to the views expressed by him in his dissenting opinions in Ex parte Virginia, 100 U. S. 349, and in Neal v. Delaware, 103 U. S. 398; and therefore dissents from the judgment in this case. WAITE, C. J., dissenting, with whom concurred GRAY, J. I am unable to concur in this judgment. In my opinion it is not to be presumed that the courts or the officers of Kentucky neglected or refused to follow the rulings in Strauder v. West Virginia after the judgment in that case was pronounced by this court. The court of appeals promptly recognized the authority of that case, and, in the absence of any proof to the contrary, it seems to me we must assume the inferior courts also did.
106.US.399	1. A board of commissioners, one from each of five counties, having been incorporated by a State statute to construct and maintain levees, with authority to make contracts for the doing of the work, and having made such a contract, and been sued in equity thereon, in the district in which the domicile of the board was established by its act of incorporation, by persons residing out of the district, a subsequent statute of the State abolished the offices of the commissioners, and constituted the treasurer and the auditor of accounts of the State ex offi.io the levee board, with the declared purpose "to substitute the treasurer and auditor in place of the board of levee commissioners now in office;" and a bill of revivor was filed against them by leave of the court. Held, that the suit might be prosecuted against the new board, although both the treasurer and the auditor resided out of the district; and that an appeal from a final decree for the complainant might be taken by the treasurer and auditor, describing themselves by their individual names, and as such officers, and as ex officio the levee board. 2, A board of commissioners, authorized by statute to make contracts for the building of levees, and to borrow money, issue bonds, and sell and negotiate them in any market, but not at a greater rate of discount than ten per cent, may make a contract for the work at certain prices by the cubic yard, payable in such bonds; and may afterwards amend that contract by inserting "at the rate of ninety cents on the dollar," and issue bonds to the contractors accordingly, upon being satisfied that such was the agreement actually made between the parties; although the work is actually done by sub-contractors for lower prices in cash. 3. A board of levee commissioners made a settlement with contractors employed to do the work on certain levees, by which it paid them a certain sum and took a receipt in full of all demands. The parties afterwards executed an agreement under seal, reciting the settlement and receipt in full of all demands, a complaint of tile contractors that injustice had been done them in that settlement, and the desire of the board to do full justice; and stipulating that two engineers, one designated by each party, should measure the work done, and render to the parties an estimate of the amount due to the contractors for such work according to the original contract; that if this should differ from the amount already paid, the difference should be paid or refunded accordingly; and that these two engineers and a third, to be agreed on by them, should be arbitrators for the adjustment of all questions of difference; that, in the adjustment of questions pertaining to the measurement, the contractors should have the privilege of introducing all proper evidence, and the board of rebutting that evidence; and that, before proceeding with tile measurement, the contractors should give written notice to the board of the points to be proved and the character of the evidence to be offered. The contractors thereupon gave notice of their intention to introduce proof of several matters, some of which did not concern the measurement; to which the engineer of the board objected; and the arbitration fell through. Held, that the settlement and receipt bound the contractors as an accord and satisfaction, and they could not maintain a suit upon the original contract to recover further compensation for the work.	This is an appeal by 'William L. Hemingway, treasurer of the state of Mississippi, and Sylvester Gwinn, auditor of said state, and ex officio the levee board of Mississippi, district No. 1,' from a final decree of the district court of the United States for the northern district of Mississippi upon a bill in equity for the specific performance of a contract, filed in that court on the twenty-third of February, 1873, by Hiram A. Partee, a citizen of Tennessee, and Jephthah W. Stansell, a citizen of Arkansas, copartners under the name of Partee & Stansell, (of whom the appellee is the survivor,) against the levee board of Mississippi, district No. 1, and the five persons constituting that board. By an act of the legislature of the state of Mississippi of March 17, 1871, entitled 'An act to redeem and protect from overflow from the river Mississippi certain bottom lands herein described,' this board, consisting of commissioners to be appointed by the supervisors of Tunica and four other counties respectively, was incorporated for the purpose of constructing, repairing, and maintaining levees along a part of the Mississippi river. Its domicile was fixed at the county seat of Tunica county, in the northern district of Mississippi, and it was authorized to appoint a secretary and treasurer, and to let out and contract for the construction of the works, and to issue negotiable bonds to the amount of $1,000,000, and to sell and negotiate them in any market, but not at a greater rate of discount than 10 per cent. This suit was brought upon a contract made by the board with the plaintiffs for the construction of certain levees. While it was pending, on the eleventh of April, 1876, the legislature of Mississippi passed an act entitled 'An act to abolish the levee board of district No. 1, and to pay the debts of said board;' and enacting that the offices of commissioners, secretary, and treasurer of levee district No. 1, as existing under the statute of 1871, be abolished, and that the auditor of public accounts and the treasurer of the state be constituted and appointed the levee board of district No. 1, ex officio, and discharge all the duties of the levee board, and of the secretary and treasurer of the same; 'it being the intent and purpose of this act to substitute the auditor of the state and the treasurer thereof, ex officio, as such commissioners, secretary, and treasurer, in place and stead of the board of levee commissioners, secretary, and treasurer of levee district No. 1, now in office;' and that 'the auditor and treasurer shall have full power to settle up, under the laws now in force, the unfinished business of the said levee board of district No. 1, and to pay any outstanding liabilities of the same in such funds as may be applicable to the same.' The defendant thereupon moved to dismiss the bill, because by this statute the levee board had been abolished, and was no longer capable of suing or being sued. The court overruled this motion, and allowed the plaintiffs to file a bill of revivor against the auditor and treasurer, (both of whom resided at Jackson, in the southern district of Mississippi,) as constituting the levee board of district No. 1, and, after due pleadings and proofs, entered the final decree against the levee board, from which this appeal is taken. The appellee now moves to dismiss the appeal, because it is the appeal of Hemingway and Gwinn only, and not of the levee board. But we are of opinion that this motion, and the motion made in the court below to dismiss the bill, are equally groundless. The statute of 1876, while it abolished the offices of the commissioners who previously constituted the corporation of the levee board, did not dissolve or extinguish the corporation, but merely substituted the state treasurer and the auditor of accounts as the members of that corporation. The suit might, therefore, be prosecuted against the levee board as a corporation, notwithstanding the change in its members; and a bill of revivor having been allowed to be filed for that purpose, it need not be considered whether any revivor is requisite. The fact that the new members reside in another district is immaterial. A court which has once acquired jurisdiction of a suit does not lose it by a change of domicile of the parties, and may, when the suit is of a nature that survives, bring in the representatives or successors of a party who has died or ceased to exist, without regard to their domicile. The levee board, being the defendant in the suit, might appeal from the final decree; and the appeal taken by Hemingway and Gwinn, describing themselves not only by their individual names, and as treasurer and auditor respectively, but also as ex officio the levee board, is the appeal of the board. It follows that the motion to dismiss the bill because of the passage of the statute of 1876 was rightly denied by the court below, and that the motion to dismiss the appeal must be overruled by this court. The evidence shows that the board, under the authority conferred by its act of incorporation, advertised for written bids for contracts to do the work; that the plaintiffs made a bid accordingly for the work on certain parts of the levees at specified prices by the cubic yard, payable in bonds at 90 cents to the dollar, or 10 per cent. discount; that this bid was accepted by the board, and on the twenty-eighth of September, 1871, a contract in writing was signed by the parties, by which the plaintiffs agreed to do the work according to the specifications, and to the satisfaction and acceptance of the chief engineer of the board. The board agreed to pay them in bonds the prices named in the bid,—four-fifths on monthly estimates by its engineer of the relative value of the work done, and the rest on the final completion of the work, the engineer's acceptance thereof, and estimate of the quantity, character, and value of the work done, and the plaintiffs' release, under seal, of all demands arising under the contract; and it was mutually agreed that the decision of the chief engineer should be final and conclusive in any dispute which might arise between the parties to this contract. It further appears that afterwards, and to carry out the intention of the parties at the time of signing the contract, the board, at the plaintiffs' request, caused to be interlined therein, after the word 'bonds,' the words 'at the rate of 90 cents on the dollar,' and that monthly, during the progress of the work, four-fifths of the engineer's estimates of the amount of work done were paid for, at the prices stipulated in the contract, in bonds at that rate. The board, in its answer and by a cross-bill, contended that the plaintiffs had been largely overpaid, because the prices agreed on greatly exceeded the prices at which the work could be done, and was done by subcontractors, for cash; and because the issue of bonds at 90 cents on the dollar in payment of those prices was in effect a negotiation of the bonds at a greater rate of discount than 10 per cent. But the board had authority to make contracts, and consequently to agree upon the compensation for the work. Being authorized to issue bonds, it might issue them directly to the plaintiffs; and the prices agreed to be paid, as well as the rate at which the bonds should be taken, corresponded to the original bid made by the plaintiffs and accepted by the board, as well as to the terms deliberately adopted in the formal contract. The suggestion that this course was pursued with the purpose of fraudulently evading the restriction of the statute is unsupported by proof; and there is no evidence that the funds necessary to repair the levees could have been obtained in any other manner. This position of the levee board, therefore, cannot be maintained, and to that extent the decree of the district court must be affirmed. But the remaining question in the case presents greater difficulties. The facts, as disclosed by the record, appear to us to be as follows: After the plaintiffs had completed the work, W. R. Kirkpatrick, the chief engineer of the board, who had superintended the work, made a final estimate of its quantity, character, and value. The board, being dissatisfied with his estimate, discharged him, and caused the work to be remeasured by B. Mickle, a special engineer, (afterwards appointed chief engineer,) whose estimate showed a much smaller sum to be due to the plaintiffs. The board thereupon refused to pay the amount due according to Kirkpatrick's estimates, and, after some controversy and negotiation, settled the claim by paying the plaintiffs $47,800, the amount found due by Mickle, and the plaintiffs signed and gave them a receipt in these terms: 'Memphis, June 18, 1872. Received of A. R. Howe, Treasurer Mississippi Levee Board District No. 1, $47,800, on account of work on levee, the same being in full of all demands to date.' The plaintiffs in their bill allege that this receipt was fraudulently and oppressively extorted by the levee board, and was signed by the plaintiffs under protest. But the only evidence to support their allegation is the testimony of Stansell himself, and he on cross-examination admitted that he did not know much about the matter, as Partee attended to the money transactions of the firm; and his testimony is met and controlled by the explicit denial in the answer of the board upon the oath of two of its members, as well as by the recitals of an agreement under seal, made between the board of the first part and the plaintiffs of the second part on the fourth of October, 1872, the important portions of which are as follows: 'Whereas, said party of the first part have heretofore made full and complete settlement for all work done on said levee by said party of the second part, as evidenced by their receipt acknowledging the same; and said party of the second part do now come forward and complain that injustice was done them in said settlement; and it being the desire of the party of the first part to do full justice to all men,—it is hereby agreed that the party of the second part shall designate an engineer, who shall proceed with the chief engineer of this board to measure all work done by said party of the second part on said levee, and render to the parties to this agreement an estimate of the amount due to the party of the second part for such work, according to the contracts entered into for the completion of the same. And it is further agreed that, should said estimate exceed the estimate made by the special engineer of this board in the month of June, 1872, the party of the first part shall pay to said Partee & Stansell, party of the second part, the amount of such excess, and all the expenses of this measurement shall be borne by the board. But if the said estimate shall be less than the estimate of the said special engineer in June, 1872, then said party of the second part shall refund to said party of the first part the amount of such deficit, and pay all the expenses of this measurement.' 'It is further agreed that the party of the second part shall designate an engineer, which engineer shall suggest a third engineer, who shall be acceptable to the chief engineer of this board, and the said engineers so selected shall, with the chief engineer of this board, constitute a board of arbitrament for the adjustment of all questions of difference, the agreement of any two to be final. In the adjustment of questions pertaining to this measurement, the contractors shall have the privilege of introducting all proper evidence, oral or written, of notes, profiles, or other evidence; which testimony may be rebutted by the president of the board,—this testimony being allowed to give the engineer information as to the fills or any other fact not perceptible to the engineers; to which testimony the engineers shall give such weight as they may think the same entitled to receive.' On the twelfth of December, 1872, the parties signed a further agreement, stating that Mickle on the part of the levee board, George B. Fleece on the part of the plaintiffs, and R. L. Cobb, designated by Fleece with the consent of Mickle, constitute the board of arbitrament referred to in the agreement of October 4, 1872; and establishing rules to govern that board in adjusting all matters brought before them, one of which rules was as follows: 'Inasmuch as by the terms of said agreement the first party can only rebut the testimony introduced by the second party, it is agreed that the said second party shall, before further proceeding with the measurement, notify the first party in writing what points they expect to prove and the character of the evidence proposed, so that the said first party may be ready with the rebutting evidence.' On the same day, the plaintiffs gave notice in writing to the levee board that they would introduce proof before the board of arbitration upon twelve different matters, including these three: '(4) The clause in the contract touching shrinkage, its meaning, and the adjudication of that question by the chief engineer of your board prior to and about simultaneous with the signing of the original contract.' '(9) The damage done to us by the repeated refinishing of work under orders of your engineers.' '(11) The delay of a final estimate, of various payments, and the damage to us arising therefrom.' On the next day, Mickle wrote a letter to Fleece, beginning thus: 'In arranging the preliminaries to our organization as a board of arbitrament on the question of difference between the levee board of this district and Messrs. Partee and Stansell, I am notified that claims will be made and testimony offered clearly in contravention of the terms of the agreement from which our authority is to emanate, and as such proceeding would render our decision unsatisfactory and void, I cannot proceed further in the matter unless it is distinctly understood that the following provisions of the contracts and agreements entered into by the said parties, and on which our authority is understood to be based, shall be strictly observed.' He proceeded to point out that the agreement of October 4, 1872, did not permit any evidence to be introduced except in relation to the measurement of levees; and also stated the substance of the following provisions in the specifications annexed to the original contract: 'Nothing will be paid for settling, but its cost will be included in the price paid for the levee, as estimated up to true grade. If the levee be found deficient in height, slopes, or base, or not to have the full settling on top and slopes, the contractor must go over it immediately and correct all deficiencies, when the engineer in charge will run a test-level over it to see that all is right.' 'All damage or injury to the work, resulting from flood or other cause, shall be sustained by the contractor until finished and received by the chief engineer; and no work shall be received until fully and completely finished in accordance with the above specifications.' To this letter Fleece immediately replied, contending that the board of arbitrament was already organized, and declining to discuss in advance any point likely to come before it. A correspondence of six weeks ensued between Mickle and Fleece, in the course of which, after much dispute upon the question whether Cobb had been in due form accepted as one of the arbitrators, Fleece designated him anew in writing, Mickle declined to accept him, Fleece offered Mickle the choice of either of several other persons in Cobb's stead, and the correspondence ended in Mickle's insisting on the objections made in his letter of December 13, 1872, and in the plaintiffs' abandoning the arbitration. The court below was of opinion that the receipt in full of the eighteenth of June had been wholly set aside by the agreement of the fourth of October, and that the arbitration under this agreement had failed by the fault of the defendant; and entered a decree for the plaintiffs according to the final estimate of Kirkpatrick. We cannot concur either in the reasons or in the result. In our view, the effect of the agreement of the fourth of October, 1872, was to recognize that there had been a settlement in full between the parties of the amount due from the levee board to the plaintiffs, which bound both parties as an accord and satisfaction; and to agree to open that settlement to this extent only: Three engineers, to be appointed as therein provided, should measure the work done by the plaintiffs. If their estimate should differ from the estimate of Mickle, according to which the settlement had been made, the difference should be paid by the board or refunded by the plaintiffs. The stipulation that the three engineers should 'constitute a board of arbitrament for the adjustment of all questions of difference' was necessarily limited to questions of difference in relation to the subject to be referred to them. If such measurement by the arbitrators should not modify the estimate of work done, or if the arbitration should fail without fault of the levee board, the settlement stood. The evidence, the substance of which is above recited, satisfies us that the arbitration did not fail by any fault on the part of the levee board, but by reason of the persistent attempts of the plaintiffs, against the steady opposition of the levee board, to introduce evidence before the board of arbitrament, not limited to the question of measurement, which was the only matter to be submitted to this board, but touching other matters which had been concluded by the contracts executed and the settlement made between the parties. The result is that the decree below must be reversed, and the case remanded with directions to enter a decree dismissing the bill.
107.US.407	A party who, under sect. 4 of the act of Aug. 5, 1861, c. 45, is entitled to the drawback there mentioned may, when payment thereof has been refused, maintain a suit therefor in the Court of Claims against the United States.	The fourth section of the act to provide increased revenue from imports to pay interest on the public debt, and for other purposes, approved August 5, 1861, reads as follows: 'That from and after the passage of this act there shall be allowed, on all articles wholly manufactured of materials imported, on which duties have been paid, when exported, a drawback equal in amount to the duty paid on such materials, and no more, to be ascertained under such regulations as shall be prescribed by the secretary of the treasury, provided that 10 per centum on the amount of all drawbacks so allowed shall be retained for the use of the United States by the collectors paying such drawbacks respectively.' 12 St. 292. On the twenty-second of January, 1862, the secretary established such regulations as he deemed appropriate, the first of which is this: (1) 'To entitle the exporter to such allowance of drawback, he must, at least six hours previous to the putting or lading any of the articles intended to be exported by him for benefit of drawback on board any vessel or other conveyance for exportation, lodge with the collector of customs for the district from which such exportation is to be made, an entry setting forth his intention to export such articles, and the marks, numbers, and a particular description of the same, with their quantity and value, and designating the manufacturer thereof, the place where deposited, the name of the vessel or other conveyance in or by which, and the port or place to which, the same is intended to be exported, and also describing in such entry the material or materials severally from which he claims the articles to have been manufactured, designating when, where, whence, by whom, and in what vessel or other conveyance the same was or were imported, and specifying the quantity and value thereof used in the manufacture. This entry shall, upon presentation, be verified by the oath or affirmation of the proprietor and the foreman of the manufactory in which such articles were made.' Other regulations require the collector and the surveyor to make the necessary examination to ascertain if the articles described in this entry be as stated, and to mark and designate them accordingly, and to verify the weight, gauge, measure, or amount, and to superintend the lading for export, etc. All this having been done, and the oath of the exporter and his bond, with condition prescribed by the rules, being given, the collector is to give a certificate of the amount to which the party is entitled as drawback, on which he is to receive the money. The appellants in this case sued in the court of claims for a drawback on account of large amounts of linseed cake made by them out of linseed imported from a foreign country, and which cake they exported to London. Their petition was dismissed by that court, on the ground, as stated in their opinion, that it was not a case of which they had jurisdiction. The court, however, did entertain jurisdiction of the case; an answer was filed on behalf of the United States denying the allegations of the petition, testimony was taken, and a full and elaborate finding of facts was made, and on this the court, as a conclusion of law, find that for want of jurisdiction of the subject-matter the petition is dismissed. This finding of facts shows that in the months of September, October, November, and December, 1870, claimants imported from Calcutta large quantities of linseed, for which they oil and linseed cake, of the latter pounds according to law, which was by them, without intermixture with any other linseed or other material, manufactured into linseed oill and linseed cake, of other of which article there was produced therefrom 5,156,585 pounds. It was for the exportation of part of this latter product that the drawback is claimed in this suit. As, however, this was done by several shipments at different times, and as the finding of facts is precisely the same in the case of each shipment, except as to date, quantity, and the name of the vessel, we give here verbatim the finding as to the first: 'On the nineteenth day of January, 1871, the claimants and said Ludlow D. Campbell were the owners of and had in their possession 447,712 pounds of linseed cake, being parcel of the aforesaid 5,156,585 pounds, and desiring and intending to export the same from New York to London for the benefit of the drawback authorized by the fourth section of the 'Act to provide increased revenue from imports to pay interest on the public debt, and for other purposes,' approved August 5, 1861, duly presented to and lodged with the collector of customs for the port of New York, before putting or lading any of the said cake on board any vessel for exportation, an entry of said linseed cake for export by the ship Sterling Castle, which was accompanied with the certificate and oath required by, and was in all respects in conformity with, the regulations prescribed by the secretary of the treasury, in pursuance of the requirement of the fourth section of said act, and the said claimants and said Ludlow D. Campbell in all respects conformed to such regulations in respect to drawback, which allowance had been by said regulations fixed at 17 cents per 100 pounds, and made payable to the United States 30 days after clearance of the vessel by which exportation was made, but the said collector, acting under instructions from the secretary of the treasury, given on the fifth day of December, 1870, wholly refused to perform or cause to be performed in any manner any other act than the receipt of said entry prescribed by said regulations to be done, or caused to be done, by a collector of customs under the said fourth section of said act. 'Thereafter, in the month of January, 1871, the said 447,712 pounds of linseed cake were shipped by the claimants and said Ludlow D. Campbell on the said ship Sterling Castle, which vessel, with said linseed cake on board, cleared at the custom-house at the port of New York, for London, on the thirtieth day of January, 1871, and said cake was thereupon exported and carried by said vessel from New York to the port of London, in England, and there discharged and delivered, and no part thereof has been at any time relanded in any port or place within the limits of the United States.' The argument of counsel for the United States, and the opinion of the court of claims, is that, until the officers of the customs comply with all the regulations of the secretary of the treasury, and the collector issues the drawback certificate, the law imposes upon the United States no obligation to pay anything for such drawback; that the law conferred upon the secretary the right to make the regulations, and the collector the power to make the certificate for payment of drawback, and that the refusal of the collector to perform the duties imposed upon him preliminary to making his certificate, and then refusing the certificate, totally defeats the claim of the party, who, by the law, is guarantied a right to his drawback, and who has complied with all that the law requires of him to secure and enforce it. It would be a curious thing to hold that congress, after clearly defining the right of the importer to receive drawback upon subsequent exportation of the imported article upon which he had paid duty, had empowered the secretary by regulations, which might be proper to secure the government against fraud, to defeat totally the right which congress had granted. If the regulations of themselves worked such a result, no court would hesitate to hold them invalid as being altogether unreasonable. But the regulations in this case are not unreasonable; nor do they interpose any obstacle to the full assertion and adjustment of plaintiffs' right. It is the order of the secretary of the treasury forbidding the collector to proceed under these regulations, or in any other mode, which is the real obstacle. Is that order a defense to this action? Can the secretary, by this order, do what he could not do by regulations repeal or annul the law? Can he thus defeat the law he was appointed to execute, by making regulations, and then, by ordering his officers not to act under them, and not to act at all, place himself above the law and defy it? We think the court of claims has jurisdiction of such a claim: (1) Because it is founded on a law of congress; and (2) because the facts found in this case raise an implied contract that the United States will refund to the importer the amount he paid to the government. The finding of the court is that, by the regulations, this allowance of drawback had been fixed at 17 cents per hundred pounds. The act of congress having declared that on exportation there shall be allowed a drawback equal in amount to the duty paid on such material, and the secretary having established by a regulation that, as regarded the cake resulting from the manufacture of the linseed into oil and cake, the latter represents, at 17 cents per hundred pounds, the duty on the imported seed so converted into cake, there resulted a contract that when exported the government would refund, repay, pay back, this amount as a drawback to the importer. If this be not so, it is because it is impossible to make a contract when the details of its execution or performance are left to officers who refuse to carry them out. So it is equally clear that this claim is founded on the law allowing drawback. The court of claims makes the mistake of supposing that the claim is founded on the regulations of the secretary of the treasury. This view cannot be sustained. It is the law which gives the right; and the fact that the customs officers refuse to obey these regulations cannot defeat a right which the act of congress gives. The second section of the act of September 20, 1850, granting all the overflowed and swamp lands to the states in which they lie, declares: 'That it shall be the duty of the secretary of the interior, as soon as may be practicable after the passage of this act, to make out an accurate list and plats of the lands granted as aforesaid and transmit the same to the governor of the state, and, at the request of said governor, cause a patent to be issued to the state therefor; and on that patent the fee to the lands shall vest in the state.' 9 St. 519. This duty was almost wholly neglected by the secretary. In the case of Railroad Co. v. Smith, 9 Wall. 95, it was insisted that the failure of the secretary to act made these lands subject to a grant for railroad purposes of a date subsequent to the swamp-land act. This proposition was thus answered by this court: 'Must the state lose the land, though clearly swamp land, because that officer has neglected to do this? The right of the state did not depend on his action, but on the act of congress, and though the state might be embarrassed in the assertion of this right by the delay or failure of the secretary to ascertain and make out a list of these lands, the right of the state to them could not be defeated by this delay. 'Any other rule results in this: that because the secretary of the interior has failed to discharge his duty in certifying these lands to the state, they therefore pass under a grant from which they are excepted beyond doubt, and this when it can be proved, by testimony capable of producing the fullest conviction, that they were of the class excluded from plaintiff's grant,'—— That is, was granted to the state as swamp lands. And in French v. Fyan, 93 U. S. 173, the court, reaffirming Railroad Co. v. Smith, said: 'There was no means, as this court has decided, to compel him (the secretary) to act, and if the party claiming under the state in that case could not be permitted to prove that the land conveyed to him by the state as swamp land was in fact such, a total failure of justice would occur, and the entire grant to the state might be defeated by this neglect or refusal of the secretary to perform his duty.' The application of this reasoning to the present case is too clear to need illustration. It is an error to suppose that the officers of customs, including the secretary, are in regard to this law created a special tribunal to ascertain and decide conclusively upon the right to drawback. Their function is entirely ministerial. They are authorized to pass upon no question essential to the claimant's right so as to conclude him in a court of competent jurisdiction. From the moment he presents his sworn entry, they simply ascertain quantities, identify and mark packages, accept bonds and sureties, see that the exported article leaves the port in the ship. These and like duties being discharged, it is the collector's duty, a mere ministerial function, to give the certificate of drawback. The amount of it is fixed at 17 cents per 100 pounds by the regulation; he has nothing to do but to calculate the amount at that rate on the number of pounds shipped. He exercises no judicial or quasi judicial function. He concludes nobody's rights, and has no power to do so. The rights which the law gives cannot be defeated by his refusal to act, nor by his decision that no drawback was due. Neither the act of congress, nor any rule of construction known to us, makes the claimant's right, when the facts on which it depends are clearly established, to turn upon the view which the collector, or the secretary, or both combined, may entertain of the law upon that subject, and much less upon their arbitrary refusal to perform the services which the law imposes on them. A suggestion is made that the right to enforce the drawback in the court is affected by the fact that it is a gratuity. It has never been supposed that there was a gratuity in all the cases where imports are free of duty. The purpose of the drawback provision is to make duty free, imports which are manufactured here and then returned whence they came or to some other foreign country—articles which are not sold or consumed in the United States. The linseed in this case was bought abroad and imported for the purpose of being manufactured, and the product immediately sent out of the country. The drawback provision was simply a mode of making the linseed so imported and exported without distribution in the country duty free, and we see no gratuity in the case. But if it were a free gift, it is not for the officers of the government to defeat the will of congress on this subject by refusing to execute the law. We are of opinion that the facts found by the court of claims established the right of appellants to recover a judgment for the exported cake at the rate of 17 cents per 100 pounds; and the case is remanded with directions to enter such a judgment.
108.US.153	1. A final decree in a collision suit in admiralty where the res has been surrendered, on a stipulation under the provisions of § 941, Rev. Stat., may be entered against both principal and sureties at the time of its rendition. 2. If a decree in admiralty is entered against claimant and sureties, and claimant appeal, and sureties sign the supersedeas bond also as sureties, an alternative writ of mandamus will not be granted to vacate the decree below as to the sureties. 8. Nor will this court, on the stipulator's motion, order the decree set aside here as to them.	ase show that they entered into a stipulation in the sum of $70,000 on behalf of Samuel Jackson, master and claimant of the steam-ship Belgenland, in a suit for collision in the district court of the United States for the eastern district of Pennsylvania, conditioned in the following words: It is not stated in the petition that the stipulation was executed under the provisions of section 941 of the Revised Statutes, but for the purposes of this application we assume it was, there being no representation to the contrary. That section provides in express terms for a return of the stipulation to the court, and that 'judgment thereon against both principal and sureties may be recovered at the time of rendering the decree in the original cause.' It would seem as though nothing more was needed to show the power of the court to include the stipulators in the original decree. Under section 1007 of the Revised Statutes, no execution can issue until the expiration of 10 days after the entry of the decree. In this respect these decrees are like others. An appeal with supersedeas stays execution against the stipulators as well as the principal. Therefore, there is nothing in the decree inconsistent with the provisions in the stipulation in respect to the time when the execution may issue. It is no doubt within the power of the court to postpone a decree against the sureties until after the time for appeal by the principal has expired, and then to proceed only on notice. Such is the practice in some of the circuits, but we can find nothing in the statute which makes this imperative. In the case of The New Orleans, 17 Blatchf. 216, to which our attention has been directed by the counsel for the petitioners, the proceeding was against the sureties for the claimants, on their appeal from the district court to the circuit court, and the court refused to enter the judgment on such a bond until after the time for perfecting an appeal to this court had expired. That was an entirely different question from the one presented here upon a stipulation and entered into under section 941. It is unnecessary to consider whether in law the decree is a lien on the real estate of the stipulators after appeal. Our inquiry is not as to the effect of the decree, but as to the jurisdiction of the court to enter it. If there was jurisdiction, any error that may have been committed cannot be corrected by mandamus. As, upon the showing made by the petitioners, we are clearly of opinion they are not entitled to the relief they ask, the alternative writ is denied.
106.US.537	A stockholder of a corporation, in order to protect its rights and property against the threatened action of a third party, filed his bill against the latter and the corporation, alleging, inter alia,t hat the directors, although thereunto requested, had neglected and refused to institute proceedings. Held, that he must show a clear case of such absolute and unjustifiable neglect and refusal of the directors to act as would lead to his irreparable injury, should he not be permitted to bring the suit. Hawes v. Oakland, 104 U. S. 450, cited upon this point and approved.	In December, 1871, the Mutual Gas-light Company, of Detroit, was created a corporation under a general law of Michigan, for the purpose of manufacturing, selling, and furnishing gas for consumption in Detroit. The proposed corporators had previously made application to the common council to authorize the corporation, when formed, to lay gas-pipes, mains, conductors, and service-pipes in the avenues, streets, lanes, highways, alleys, public parks, and squares throughout the city; and obtained the passage of an ordinance granting permission to the company to lay the pipes, subject, however, to certain conditions. Power was conferred by law upon the city authorities to grant the permission 'upon such reasonable regulations as they might prescribe;' and they provided that the permission should cease if the company should, at any time, combine with any other company concerning rates to be charged for gas either to the city or to private consumers; and that the company should not sell its property, franchised, or privileges to any other gas-light company, under the penalty of a forfeiture of its works to the city. The company accepted the terms of the ordinance; erected its manufacturing works in the township of Hamtramck, just beyond the boundary of the city; laid mains and service-pipes in the streets, and in November, 1872, commenced distributing and supplying gas to private consumers and to the city, and continued to do so up to the time this suit was commenced. During this period, and previously, another corporation, known as the Detroit Gas-light Company, was in existence and was also supplying gas to private consumers and the city. In June, 1877, the two companies entered into an agreement to divide the city between them, one to take the part lying easterly of the middle of Woodward avenue, and the other the part lying westerly of it; each to transfer to the other its property situated in the portion of the other, and each stipulating not to lay mains or to supply gas in the portion of the other; reserving, however, the right to fulfill all obligations resting upon it with respect to any portion of the city. The difference in the value of the property exchanged was $140,000 in favor of the old company, and this sum the new company agreed to pay. The common council, deeming this division of the city, and other things done or omitted by the company, to constitute a breach of the conditions upon which permission to lay its pipes in the streets had been granted, passed on the fourteenth of December, 1877, an ordinance repealing the previous one, reciting as reasons for it that the company had not built its gas-works in the city of Detroit, but in the township of Hamtramck; that it had entered into an agreement with the Detroit Gas-light Company to divide the territory of Detroit between them for the supply of gas; and that it had refused to lay mains in streets on petition of owners or occupants of buildings for a supply of gas. The repealing ordinance declared that the company had thus forfeited its gas-pipes, mains, conductors, and service-pipes lying within the avenues, streets, lanes, highways, alleys, public parks, and squares of the city, and all other property situated within its limits; and that the title to the whole had vested in the city of Detroit. It therefore directed the comptroller to assume possession and control of the same, and to serve a copy of the ordinance upon the company. To restrain the enforcement of this ordinance and protect the rights and property of the company, the present suit was commenced by the complainant, a citizen of New York. The company had expended large sums of money in the construction of its works, and created for that purpose a debt, represented by bonds secured by mortgage upon its property, which, with interest, amounted to $650,000. There was, therefore, an urgent necessity for legal proceedings to stop the seizure of the property. There were only three directors of the company, two of them residents of Detroit and one of New York, and as the company could not maintain a suit in the federal court against the city, they devised such a case of refusal on their part to take the necessary legal proceedings to protect the property and rights of the company as to give jurisdiction to the federal court of a suit brought for that purpose by the non-resident director and stockholder. The three directors discussed the matter among themselves. The president represents himself to have been very belligerent in his disposition. according to his statement, he professed not to want any legal proceedings taken. He proposed to settle the matter by force, and if any man attempted to take the property, to shoot him on the spot. His feelings on the subject must have been very intense, for more than two months afterwards he testified under oath that he would 'most assuredly' have shot any man who meddled with him 'as quick as wink;' as quick as he would have shot a burglar in his house at midnight. Dean, the complainant, another director, favored more pacific methods; he desired legal proceedings to be instituted. The third director, Meddaugh, was similarly disposed. He was a member of the bar of Michigan, and acting as one of the attorneys of the company. He favored legal proceedings, but expressed a want of confidence in the local tribunals of the state by reason of the then excited condition of the public mind; he desired to get into the federal court, and so he resolved in object to a suit in the state courts. A meeting of the directors was thereupon improvised in his office to carry out the course resolved upon. Dean then asked that the officers of the company be instructed to protect its property and rights from the execution of the threat contained in the repealing ordinance of the city and for that purpose to bring suit in the proper court. The matter being discussed, it was resolved: 'That the company, convinced of the improbability of obtaining redress or justice in the local courts, which would be its only recourse, in the present excited condition of the public mind,—the press of the city having, for some time past, continually aggravated public feeling by exaggeration and falsehood,—cannot prudently enter into a litigation with the city, and that no such attempt on its part would now be made.' Dean voted against the resolution, the other two directors in favor of it. The resolution having passed, Dean, on the following day, commenced the present suit, alleging the refusal of the directors to institute proceedings in the name of the company. The bill was read in the presence of the three directors, and one of them, Meddaugh, acted as a solicitor in the case. It is impossible to read the testimony of the president contained in the record, with his hesitating and evasive answers to the interrogatories of counsel, and not be convinced that the refusal, which constituted the basis of the present suit, was made for the express purpose of enabling a suit to be brought in a federal court, and that no such refusal would have been given if that result had not been desired. It was an attempt to get into the federal court upon a pretense that justice was impossible in the state courts, owing to the excited condition of the public mind. The only party who could seek redress in a federal court, by reason of his citizenship, was willing to trust the local courts; and if a determination had not existed to force the controversy away from them, we have no doubt that the other directors would readily have agreed with him. The refusal to take legal proceedings in the local courts was a mere contrivance, a pretense, the result of collusive arrangement to create for one of the directors a fictitious ground for federal jurisdiction. The case comes, therefore, within the purview, if not the letter, of the provisions of section 5 of the act of March 3, 1875, defining the jurisdiction of the circuit courts of the United States, (18 St. at Large, p. 472, c. 137.) That section declares: 'That if, in any suit commenced in a circuit court, or removed from a state court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require.' A single stockholder in a corporation has undoubtedly the same right to institute legal proceedings against the corporation for the protection of his individual rights that a third party, not a stockholder, possesses; but when he resorts to such proceedings to protect, not simply such interests, but the property and rights of the corporation against the action or threatened action of third parties, thus assuming duties properly devolving upon its directors, he must show a clear breach of duty on their part in neglecting or refusing to act in the matter, amounting to such grossly culpable conduct as would lead to irremediable loss to him if he were not permitted to bring the matter before the courts. And such ncglect and refusal must not be simulated, but real and persisted in, after earnest efforts to overcome it. The opinion in the case of Hawes v. Oakland is full of instruction on this head, and to it we refer for a statement of the law; we can add nothing to its cogent reasoning. 104 U. S. 450. The decree of the court below must be reversed, and the case remanded with directions to dismiss the bill, without prejudice to a suit in the state courts; and it is so ordered.
108.US.561	A suit cannot be removed from a State court, under the act of 1875, unless the requisite citizenship of the parties exists both when the suit was begun and when the petition for removal was filed.	In this case the court below decided that under the act of March 3, 1875, c. 137, there could not be a removal to the circuit court of the United States of a suit in a state court between parties who were citizens of different states when the suit was begun, if, when the petition for removal was filed, the parties were all citizens of the same state. To reverse an order remanding a suit on that ground, this appeal was taken. Under the judiciary act of 1789, (section 12,) it was held, in Inc. Co. v. Pechner, 95 U. S. 183, that there could not be a removal unless the necessary citizenship existed when the suit was begun. That act provided only for a removal on the application of the defendant when the plaintiff was a citizen of the state in which the suit was brought, and the defendant was required to file his petition for removal at the time of entering his appearance in the state court. Under such circumstances changes of citizenship, after the suit was begun and before the time for applying for a removal, would not often occur. The act of 1875 is radically different from any which preceded it. Under that act either party may petition for removal, and neither party need be a citizen of the state in which the suit was brought. The material language is as follows: 'That any suit of a civil nature at law or in equity, now pending or hereafter brought in any state court, * * * in which there shall be a controversy between citizens of different states, * * * either party may remove said suit into the circuit court of the United States for the proper district.' In order to obtain the removal a petition therefor must be filed in the state court at or before the term at which the cause could be first tried, and before the trial. In the present case the petition was not filed until nearly two years after the commencement of the suit. The construction of the act is by no means free from doubt, but on full consideration we are of opinion that the requirement of the old law, that the necessary citizenship should exist when the suit was brought, was not abolished. We cannot believe it was intended to allow a party to deprive a state court of the jurisdiction it has once rightfully acquired over him by changing his citizenship after a suit is begun, and that would be the effect of the law if the right of removal is made to depend only on the citizenship existing at the time a removal is applied for. But we are also of opinion that because of the extension of the time for applying for removal, and because neither party need be a citizen of the state in which the suit is brought and either party may apply, it was the intention to provide that the controversy should be between citizens of different states at the time of the removal. In this way the jurisdiction of the circuit court of the United States will only attach when there shall be a controversy between citizens of different states at the time the suit is transferred, and the right to the transfer will depend on the citizenship when the suit was begun and when the petition for removal is filed. We, therefore, hold that a suit cannot be removed from a state court under the act of 1875 unless the requisite citizenship of the parties exists both when the suit was begun and when the petition for removal is filed. The order remanding the cause is affirmed.
108.US.498	A and B formed a partnership with a capital of $10,000, in which each was to contribute one-half the capital. A furnished B's moiety temporarily, and when after some time B failed to comply with his agreement, A, in May, 1869, applied for a policy on B's life for $5,000. One of the brothers of B had committed suicide. One of the questions asked A by the company was as to the number of brothers of B deceased, and causes of death ; to this A made no answer. B, in the previous February. had applied to the same company for a policy, and in answer to the same question had replied: "Brothers dead, one; cause of death, accident." A policy was issued on A's application, by which the company agreed to insure the life of B for $5,000, and to pay the money "to the assured" within 30 days after notice of the death of B. B died in an insane asylum. Held, 1. That although by the terms of the policy the life of B was insured, the person in whose favor it was assured was A, and that the action on the policy was rightfully brought in his name. 2. That A had an insurable interest in B's life to the extent of the moiety of the capital which B should have contributed to the firm, without respect to the condition of the partnership accounts, unless his estimate of the interest at the time of the application was made in bad faith. 8. That the failure of A to answer the question as to the suicide of B's brother could not necessarily be imputed as a fraud; and that the concealment of the cause of the brother's death in B's application could not be imported into this suit and applied to defeat A's application.	This was an action by Leopold Luchs on a policy of insurance upon the life of Levi Dillenberg, issued by the Connecticut Life Insurance Company in June, 1869. Luchs and Dillenberg were partners at the time in the business of buying and selling tobacco in the city of Washington. Their partnership was formed in October, 1866, each agreeing to contribute his services and one-half of the capital. It was understood that the money of Dillenberg was then invested in mining stocks, and could not at once be obtained. Luchs accordingly furnished the entire capital, which was over $10,000. Dillenberg never contributed his portion, and, about two years after the partnership was formed, his failure in this respect caused dissatisfaction and complaint. It was thereupon suggested by one Myers, who was employed by an agent of the insurance company, and who had been called in as an accountant to examine the books of the concern, that, as a means of 'adjusting the dispute or misunderstanding between the partners,' a policy of insurance should be obtained upon the life of Dillenberg for the benefit of Luchs, and that Dillenberg should retire from the firm within a year afterwards. Nothing, however, was then done upon this suggestion, but in the following year the policy in suit was procured. 1. The first question presented is as to the right of Luchs to sue upon it. It is plain, from the parol evidence in the case, that it was the intention both of Luchs and Dillenberg that the policy should be procured for the benefit of Luchs. The declaration, which is the application for the policy, begins with an averment that he, Luchs, is desirous of affecting an insurance upon the life of Dillenberg, and proceeds to state the latter's age, the condition of his health, the character of his habits, and that he, Luchs, has an interest in the life of Dillenberg to the amount of $10,000. The declaration is signed both by Luchs and Dillenberg, though it purports in every line to be the separate application of Luchs. It is accompanied by questions and answers, and to the first question, as to the name and residence of the person for whose benefit the insurance is proposed, the answer is: 'Leopold Luchs, Washington, D. C.' The answers also are signed both by Luchs and Dillenberg. The policy was issued and delivered to Dillenberg, and retained by him until after the dissolution of the partnership, when he handed it to Luchs, stating that he gave it to him to show that he intended to do what was right and fair with him, and requested him to pay the premiums on it, promising to refund the money. The first two premiums were paid by Dillenberg, the others by Luchs. The difficulty in the question presented arises from the language of the policy. Omitting words not essential on this point, it reads as follows: 'This policy witnesseth that the Connecticut Mutual Life Insurance Company, in consideration of the declarations and representations made to them in the application for this insurance, and the sum of $125 to them in hand paid by Leopold Luchs, * * * do assure the life of Levi Dillenberg. * * * And the said company do hereby promise * * * the said assured * * * to pay * * * said sum insured to the said assured, his executors, administrators, or assigns, within ninety days after due notice and proof of the death of the said Levi Dillenberg. 'It is hereby declared to be the true intent and meaning of this policy, and the same is accepted by the assured upon the express conditions that in case the said person whose life is hereby insured shall pass beyond the settled limits or the protection of the government of the United States, * * * this policy shall be null. It is also understood that if the proposal, answers, and declaration made by the said Leopold Luchs, which are hereby made part and parcel of this policy as fully as if herein recited, and upon the faith and warranty of which this agreement is made, shall be found in any respect untrue, this policy shall be null and void, or in case the said assured shall not pay the said annual premiums, * * * this policy shall cease. 'It is further agreed that this poliey shall not take effect * * * until the premium above named shall be actually paid * * * during the life of the insured.' The contention of the plaintiff is that the words 'the assured' in the policy apply to the person for whose benefit the policy was effected, that is, Luchs, and not to the party whose life was insured. There are undoubtedly instances where this distinction between the terms 'assured' and 'insured' is observed, though we do not find any judicial consideration of it. The application of either term to the party for whose benefit the insurance is effected, or to the party whose life is insured, has generally depended upon its collocation and context in the policy. We are of opinion that, reading the policy here in connection with the declaration and the answers of Luchs, which form a part of it, and indicate the object of procuring it, the term 'assured' must be held as applicable to him, for whose benefit it was effected. The policy considered in AEtna Life Ins. Co. v. France, 94 U. S. 562, gives some support to this view. There the policy was effected by a brother for a sister's benefit, and term assured was held to apply to the sister, for she recovered in a suit brought in connection with her husband on the policy. The attention of the court does not appear, however, to have been directed to that term. It may be said, also, that there could be little doubt as to its proper application in that case, as it was followed by the words 'and her executors, administrators, or assigns,' thus limiting it to the sister. In other respects the language is substantially identical with that of the policy under consideration. 2. The second question presented for our determination is whether Luchs had an insurable interest in the life of Dillenberg. Upon this we have no doubt. Dillenberg was his partner and had not paid his promised proportion of the capital of the concern. At the time the policy was applied for he was still in default, and although it might have turned out that the actual amount due, upon a settlement of accounts, was less than the promised proportion, it was not a matter definitely ascertained at the time. Besides what was thus due to him, Luchs was interested in having Dillenberg continue in the partnership. He had such an interest, therefore, as took from the policy anything of a wagering character. As this court said in Warnock v. Davis, recently decided: 'It is not easy to define with precision what will, in all cases, constitute an insurable interest, so as to take the contract out of the class of wager policies. It may be stated generally, however, to be such an interest arising from the relations of the party obtaining the insurance, either as creditor of or surety for the assured, or from the ties of blood or marriage to him, as will justify a reasonable expectation of advantage or benefit from the continuance of his life. It is not necessary that the expectation of advantage or benefit should be always capable of pecuniary estimation. * * * But in all cases there must be a reasonable ground, founded upon the relations of the parties to each other, either pecuniary or of blood or affinity, to expect some benefit or advantage from the continuance of the life of the assured.' 104 U.S. 779. Certainly Luchs had a pecuniary interest in the life of Dillenberg on two grounds: because he was his creditor and because he was his partner. The continuance of the partnership, and, of course, a continuance of Dillenberg's life, furnished a reasonable expectation of advantage to himself. It was in the expectation of such advantage that the partnership was formed, and, of course, for the like expectation, was continued. In Morrell v. Trenton Mut. Life & Fire Ins. Co. 10 Cush. 282, a policy was taken out by the plaintiff upon the life of his brother, who was about going to California, on an agreement that the latter should pay to him one-fourth of his earnings for the following year. In an action on the policy it was contended that the plaintiff had no insurable interest upon the life of the insured, but the court, after deciding that he had such an interest from the fact that he held a promissory note signed by the firm of which the insured was a partner, also said that it was strongly inclined to the opinion that the plaintiff had another interest in the life of the person insured. 'He had.' said the court, 'a subsisting contract with that person, made on a valuable consideration, by which he was to receive one-quarter part of his earnings in the mines of California for one year. Such an interest cannot, from its nature, be valued or apportioned. It was an interest upon which the policy attached. By the loss of his life within the year, the person whose life was insured lost the means of earning anything more, and the plaintiff was deprived of receiving his share of such earnings to an uncertain and indefinite amount.' In Trenton Mutual Life & Fire Ins. Co. v. Johnson, 4 Zab. 576, a policy was taken out by the plaintiff on the life of one Van Middlesworth for $1,000, one-half payable to the plaintiff and the other half to Van Middlesworth. They belonged to an association called the New Brunswick & California Mining & Trading Company, the capital stock of which consisted of 45 shares of $600 each. The company consisted partly of shareholding members and partly of active members, the shareholders being each required to furnish a substitute to proceed to the mines of the company. The plaintiff owned one share, advanced $600 of capital, and procured Van Middlesworth to go out as his substitute, which he did, and acted as his agent and substitute; and the assets of the company having been divided in California, he received the plaintiff's share, and afterwards died, not having paid it over. By one of the articles of the association all treasures and all the proceeds of the labor of each member, and all profits, were to go into a general fund for the benefit of the association. To the action brought on the policy it was objected that the plaintiff had no insurable interest in the life of the deceased. On this question the court said: 'In the present case Johnson had a direct interest in the life of his substitute, whose earnings were to constitute a part of the joint funds, of which he was entitled to his share, an interest fully equivalent to the interests of a wife in the life of her husband, of a child in that of a parent, or a sister in that of a brother. And at Van Middlesworth's death, although prior to that time the company had been virtually dissolved, he had an interest in him as his creditor to the extent of his share of the assets in his hands.' In Bevin v. Conn. Mut. Life Ins. Co. 23 Conn. 244, the plaintiff had obtained a policy of insurance for $1,000 on the life of one Barstow, to whom he had advanced $350, besides articles of personal property, to enable him to go to California and there labor for one year, on an agreement that he would account to the plaintiff for one-half of his gains. The court said that Barstow was the plaintiff's debtor and partner, giving to the plaintiff an interest in the continuance of his life, as by that means, through his skill and efforts, the plaintiff might expect, not only to get back what he had advanced, but to acquire great gains and profits in the enterprise. 'All the books,' the court added, 'hold this to be a sufficient interest to sustain a policy of insurance. As to the value of this interest, we think it must be held to be what the parties agreed to consider it in the policy. This was the sum asked for by the plaintiff, and which the defendants agreed to pay in case of death, and for which they were paid in the premiums given by the insured. The policy must, we think, be held to be a valued policy.' And, after referring to a policy of insurance obtained by a sister on her brother's life, where no question seemed to have been made as to the amount, but only whether it was an interest which the law would recognize, the court said: 'So, in every case, where a person on his own account insures the life of a relative, if the sum named in the policy is not to be the rule of damages, we inquire what is? The impossibility of satisfactorily going into the question in most cases, and especially where there is nothing to guide the inquiry, and everything is uncertain, would lead us to hold that a policy like this is a valued policy as most consistent with the understanding of the parties and the principles of law.' 3. The third question presented for determination relates to alleged breaches of the warranty of the policy. It is alleged that the policy was issued upon the faith of certain statements and answers of the plaintiff which were untrue. These statements were First, that the plaintiff had an interest in the life of Dillenberg to the amount of $10,000, when, in fact, he had no interest in it; and, second, that the cause of the death of one of the brothers of Dillenberg was accident, when, in fact, he had committed suicide. As to the alleged breach of the warranty of the interest of the plaintiff in the life of Dillenberg there is this answer: The statement of the plaintiff as to the amount of his interest was necessarily conjectural. No one can affirm with absolute certainty that he has an interest to a definite sum in the life of another, where the interest depends upon the result of an existing partnership or other business transactions not yet terminated. The value of his interest in such cases will always be more or less a matter of opinion. The statement in that regard, must, of necessity, be taken as a mere estimate. If, therefore, the plaintiff had an interest in the life of Dillenberg, and his estimate was made in good faith, the declaration cannot be deemed untrue so as to constitute a breach of the warranty. The extent of a man's interest in the life of another, depending upon a continuing partnership or the results of business transactions not yet completed, is, in the nature of things, uncertain, and in such cases all that can be required is that he had an actual interest, and that his estimate was made in good faith, without any purpose to deceive. See Bevin v. Conn. Mut. Life Ins. Co., cited above. Here the plaintiff valued his interest and took out a policy for only half of the sum estimated. He did not procure the policy for any purpose of speculating upon the duration of the life of Dillenberg. From the finding of the jury we must take as true that his representation was made in good faith upon an honest opinion as to the value of his interest. As to the alleged misstatement of the cause of the death of a brother of the deceased, it is sufficient to observe that there is no allegation on this subject in the answers of the plaintiff, and the point is taken simply because, in an answer to a previous application, that statement was made. Such previous answer cannot be incorporated into the present policy. The reference to the previous application is made for the answer to a different inquiry. The may be, as stated by counsel for the company, some inconsistencies between the charges given at its request, and those given at the request of Luchs. The latter present all the disputed questions of fact to the jury, and if those granted at its request are erroneous, in so far as they differ, it is not for it to complain, as was well observed by counsel, that while the judge held Luchs within proper limits, itself was suffered to go beyond them. Upon the whole record of the case we find no error sufficient to justify a reversal of the judgment. It is, therefore, affirmed.
107.US.602	1. A certificate of deposit in these terms: " EVANSVILLE NATIONAL BAMi, " EVANSVILLE, IND., Sept. 8, 1875. "H. M. Chaney has deposited in this bank twenty-three thousand five hundred and fourteen 1. dollars, payable in current funds, to the order of himself, on surrender of this certificate properly indorsed, with interest at the rate of six per cent per annum, if left for six months. 1'$23,514.70. HEnrY REIS, Caslder,"	It is claimed on behalf of the appellant that this constitutes a valid donatio mortis causa, which entitles him to the fund; and whether it be so, is the sole question for our determination. The general doctrine of the common law as to gifts of this character is fully recognized by the supreme court of Tennessee as part of the law of that state. Richardson v. Adams, 10 Yerg. 273; Sims v. Walker, 8 Humph. 503; Gass v. Simpson, 4 Cold. 288. In the case last mentioned, that court had occasion to consider the nature of such a disposition of property, and the several elements that enter into its proper definition. Among other things, it said: 'A question seems to have arisen, at an early day, over which there was much contest, as to the real nature of gifts causa mortis. Were they gifts inter vivos, to take effect before the death of the donor, or were they in the nature of a legacy, taking effect only at the death of the donor. At the termination of this contest, it seems to have been settled that a gift causa mortis is ambulatory and incomplete during the donor's life, and is therefore revocable by him and subject to his debts, upon a deficiency of assets, not because the gift is testamentary or in the nature of a legacy, but because such is the condition annexed to it, and because it would otherwise be fraudulent as to creditors; for no man may give his property who is unable to pay his debts; and all now agree that it has no other property in common with a legacy. The property must pass at the time and not be intended to pass at the giver's death; yet, the party making the gift, does not part with the whole interest, save only in a certain event; and until the event occurs which is to divest him, the title remains in the donor. The donee is vested with an inchoate title, and the intermediate ownership is in him; but his title is defeasible until the happening of the event necessary to render it absolute. It differs from a legacy in this, that it does not require probate, does not pass to the executor or administrator, but is taken against, not from him. Upon the happening of the event upon which the gift is dependent, the title of the donee becomes by relation complete and absolute from the time of the delivery, and that without any consent or other act on the part of the executor or administrator; consequently, the gift is inter vivos.' In another part of the opinion (page 297) it is said: 'All the authorities agree that delivery is essential to the validity of the gift, and that, it is said, is a wise principle of our laws, because delivery strengthens the evidence of the gift, and is, certainly, a very powerful fact for the prevention of frauds and perjury.' In the first of these extracts there is an inaccuracy of expression, which seems to have introduced some confusion, if not an apparent contradiction, when, after having stated that 'the property must pass at the time and not be intended to pass at the giver's death,' it is added that, 'until the event occurs which is to divest him, the title remains in the donor.' But a view of the entire passage leaves no room to doubt its meaning: that a donatio mortis causa must be completely executed, precisely as required in the case of gifts inter vivos, subject to be divested by the happening of any of the conditions subsequent; that is, upon actual revocation by the donor, or by the donor's surviving the apprehended peril, or outliving the donee, or by the occurrence of a deficiency of assets necessary to pay the debts of the deceased donor. These conditions are the only qualifications that distinguish gifts mortis causa and Inter vivos. On the other hand, if the gift does not take effect as an executed and complete transfer to the donee of possession and title, either legal or equitable, during the life of the donor, it is a testamentary disposition, good only if made and proved as a will. This statement of the law, we think, to be correctly deduced from the judgments of the highest courts in England and in this country; although, as might well have been expected, since the early introduction of the doctrine into the common law from the Roman civil law, it has developed, by new and successive applications, not without fluctuating and inconsistent decisions. 'As to the character of the thing given,' says Chief Justice SHAW, in Chase v. Redding, 13 Gray, 418-420, 'the law has undergone some changes. Originally it was limited, with some exactness, to chattels, to some object of value deliverable by the hand; then extended to securities transferable solely by delivery, as bank-notes, lottery tickets, notes payable to bearer or to order, and indorsed in blank; subsequently it has been extended to bonds and other choses in action in writing or represented by a certificate, when the entire equitable interest is assigned; and in the very latest cases on the subject of this commonwealth, it has been held that a note not negotiable, or if negotiable, not actually indorsed, but delivered, passes, with a right to use the name of the administrator of the promisee, to collect it for the donee's own use;' citing Sessions v. Moseley, 4 Cush. 87; Bates v. Kempton, 7 Gray, 382; Parish v. Stone, 14 Pick. 203. In the case last mentioned,—Parish v. Stone,—the same distinguished judge speaking of the cases which had extended the doctrine of gifts mortis causa to include choses in action, delivered so as to operate only as a transfer by equitable assignment or a declaration of trust, says further, that 'these cases all go on the assumption that a bond, note, or other security is a valid subsisting obligation for the payment of a sum of money, and the gift is, in effect, a gift of the money by a gift and delivery of the instrument that shows its existence and affords the means of reducing it to possession.' He had, in a previous part of the same opinion, stated that 'the necessity of an actual delivery has been uniformly insisted upon in the application of the rules of the English law to this species of gift.' Page 204. In Camp's Appeal, 36 Conn. 88, the supreme court of errors of Connecticut held that a delivery to a donee of a savings-bank book containing entries of deposits to the credit of the donor, with the intention to give to the donee the deposits represented by the book, is a good delivery to constitute a complete gift of such deposits, on the general ground that a delivery of a chose in action that would be sufficient to vest an equitable title in a purchaser is a sufficient delivery to constitute a valid gift of such chose in action, without a transfer of the legal title. That was the case of a gift inter vivos. But the court say, referring to the case of Brown v. Brown, 18 Conn. 410, as having virtually determined the point: 'It is true that was a donation causa mortis, but the principle involved is the same in both cases, as there is no difference in respect to the requisites of a delivery between the two classes of gifts.' And so Justice WILDE, delivering the opinion of the court in Grover v. Grover, 24 Pick. 261-264, expressly declared that 'a gift of a chose in action, provided no claims of creditors interfere to affect its validity, ought to stand on the same footing as a sale;' that the title passed, and the gift became perfected by delivery and acceptance; that there was, therefore, 'no good reason why property thus acquired should not be protected as fully and effectually as property acquired by purchase;' and showed, by a reference to the cases, that there was no difference in this respect between gifts inter vivos and mortis causa. In respect to the opinion in this case, it is to be observed that it cites with approval the case of Wright v. Wright, 1 Cow. 598, in which it was decided that the promissory note, of which the donor himself was maker, might be the subject of a valid gift mortis causa, though the concurrence was not upon that point. That case, however, has never been followed. It was expressly disapproved and disregarded by the supreme court of errors of Connecticut in Raymond v. Sellick, 10 Conn. 480, Judge WAITE delivering the opinion of the court; had been expressly questioned and disapproved in Parish v. Stone, 14 Pick. 198-206, by Chief Justice SHAW, and was distinctly overruled by the court of appeals of New York in Harris v. Clark, 3 N. Y. 93. In that case it was said: 'Gifts, however, are valid without consideration or actual value paid in return. But there must be delivery of possession. The contract must have been executed. The thing given must be put into the hands of the donee, or placed within his powar by delivery of the means of obtaining it. The gift of the maker's own note is the delivery of a promise only, and not of the thing promised, and the gift therefore fails. Without delivery the transaction is not valid as an executed gift; and without consideration, it is not valid as a contract to be executed. The decision in Wright v. Wright was founded on a supposed distinction between a gift inter vivos and a donatic mortis causa. But there appears to be no such distinction. A delivery of possession is indispensable in either case.' The case from which this extract is taken was very thoroughly argued by Mr. John C. Spencer for the plaintiff, and Mr. Charles O'Connor for the defendant, and the judgment of the court states and reviews the doctrine on the subject with much learning and ability. It was held that a written order upon a third person, for the payment of money, made by the donor, was not the subject of a valid gift, either inter vivos or mortis causa; and the rule applicable in such cases, as conceded by Mr. O'Connor, was stated by him, as follows: 'Delivery to the donee of such an instrument as will enable him, by force of the instrument itself, to reduce the fund into possession, will suffice, is the plaintiff's doctrine. This might safely be conceded. It might even be conceded that a delivery out of the donor's control of an instrument, without which he could not recover the fund from his debtor or agent, would also suffice.' The same view, in substance, was taken in deciding Hewitt v. Kaye, L. R. 6 Eq. 198, which was the case of a check on a banker, given by the drawer mortis causa, who died before it was possible to present it, and which was held not to be valid. LORD ROMILLY, M. R., said: 'When a man on his death-bed gives to another an instrument, such as a bond, or a promissory note, or an I O U, he gives a chose in action, and the delivery of the instrument confers upon the donee all the rights to the chose in action arising out of the instrument. That is the principle upon which Amis v. Witt, 33 Beav. 619, was decided, where the doner gave the donee a document by which the bankers acknowledged that they held so much money belonging to the donor at his disposal, and it was held that the delivery of that document conferred upon the donee the right to receive the money. But a cheque is nothing more than an order to obtain a certain sum of money, and it makes no difference whether the money is at a banker's or anywhere else. It is an order to deliver the money, and if the order is not acted upon in the life-time of the person who gives it, it is worth nothing.' Accordingly, the vice-chancellor (In re Beak's Estate, L. R. 13 Eq. 489) refused to sustain as a valid gift a check upon a banker, even although its delivery was accompanied by that of the donor's passbook. The same rule, as to an unpaid and unaccepted check, was followed in Second Nat. Bank of Detroit v. Williams, 13 Mich. 282. The principle is that a check upon a bank account is not of itself an equitable assignment of the fund, (Bank of Republic v. Millard, 10 Wall. 152,) but if the banker accepts the check, or otherwise subjects himself to liability as a trustee, prior to the death of the donor, the gift is complete and valid. Bromley v. Brunton, L. R. 6 Eq. 275. Contrary decisions have been made in respect to donations mortis causa of savings-bank books, some courts holding that the book itself is a document of title, the delivery of which, with that intent, is an equitable assignment of the fund. Pierce v. Boston Savings Bank, 129 Mass. 425; Hill v. Stevenson, 63 Me. 364; Tillinghast v. Wheaton, 8 R. I. 536. The contrary was held in Ashbrook v. Ryan, 2 Bush, 228, and in McGonnell v. Murray, 3 Ir. Eq. 460. That a delivery of a certificate of deposit, such as that described in the record in this case, might constitute a valid donatio mortis causa, does not admit of doubt. It was so decided in Amis v. Witt, 33 Beav. 619; in Moore v. Moore, L. R. 18 Eq. 474; Hewitt v. Kaye, L. R. 6 Eq. 198; Westerlo v. DeWitt, 36 N. Y. 340. A certificate of deposit is a subsisting chose in action and represents the fund it describes, as in cases of notes, bonds, and other securities, so that a delivery of it, as a gift, constitutes an equitable assignment of the money for which it calls. The point, which is made clear by this review of the decisions on the subject, as to the nature and effect of a delivery of a chose in action, is, as we think, that the instrument or document must be the evidence of a subsisting obligation and be delivered to the donee, so as to vest him with an equitable title to the fund it represents, and to divest the donor of all present control and dominion over it, absolutely and irrevocably, in case of a gift inter vivos, but upon the recognized conditions subsequent, in case of a gift mortis causa; and that a delivery which does not confer upon the donee the present right to reduce the fund into possession by enforcing the obligation, according to its terms, will not suffice. A delivery, in terms, which confers upon the donee power to control the fund only after the death of the donor, when by the instrument itself it is presently payable, is testamentary in character, and not good as a gift. Further illustrations and applications of the principle may be found in the following cases: Powell v. Hellicar, 26 Beav. 261; Reddell v. Dobree, 10 Sim. 244; Farquharson v. Cave, 2 Colly. 356; Hatch v. Atkinson, 56 Me. 324; Bunn v. Markham, 7 Taunt. 224; Coleman v. Parker, 114 Mass. 30; Wing v. Merchant, 57 Me. 383; McWillie v. Van Vacter, 35 Miss. 428; Egerton v. Egerton, 17 N. J. Eq. 420; Michener v. Dale, 23 Pa. St. 59. The application of these principles to the circumstances of the present case require the conclusion that the appellant acquired no title to the fund in controversy, by the indorsement and delivery of the certificate of deposit. The certificate was payable on demand; and it is unquestionable that a delivery of it to the donee, with an indorsement in blank, or a special indorsement to the donee, or without indorsement, would have transferred the whole title and interest of the donor in the fund represented by it, and might have been valid as a donatio mortis causa. That transaction would have enabled the donee to reduce the fund into actual possession, by enforcing payment according to the terms of the certificate. The donee might have forborne to do so, but that would not have affected his right. It cannot be said that obtaining payment in the life-time of the donor would have been an unauthorized use of the instrument, inconsistent with the nature of the gift; for the gift is of the money, and of the certificate of deposit, merely as a means of obtaining it. And if the donee had drawn the money, upon the surrender of the certificate, and the gift had been subsequently revoked, either by act of the donor or by operation of law, the donee would be only under the same obligation to return the money, that would have existed to return the certificate, if he had continued to hold it uncollected. But the actual transaction was entirely different. The indorsement, which accompanied the delivery, qualified it, and limited and restrained the authority of the donee in the collection of the money, so as to forbid its payment until the donor's death. The property in the fund did not presently pass, but remained in the donor, and the donee was excluded from its possession and control during the life of the donor. That qualification of the right, which would have belonged to him if he had become the present owner of the fund, establishes that there was no delivery of possession, according to the terms of the instrument, and that as the gift was to take effect only upon the death of the donor, it was not a present executed gift mortis causa, but a testamentary disposition, void for want of compliance with the statute of wills. The right conferred upon the donee was that expressed in the indorsement; and that, instead of being a transfer of the donor's title and interest in the fund, as established by the terms of the certificate of deposit, was merely an order upon the bank to pay to the donee the money called for by the certificate, upon the death of the donor. It was, in substance, not an assignment of the fund on deposit, but a check upon the bank against a deposit, which, as is shown by all the authorities and upon the nature of the case, cannot be valid as a donatio mortis causa, even where it is payable in proesenti unless paid or accepted while the donor is alive; how much less so when, as in the present case, it is made payable only upon his death. The case is not distinguishable from Mitchell v. Smith, 4 De G., J. & S. 422, where the indorsement upon promissory notes claimed as a gift was, 'I bequeath—pay the within contents to Simon Smith, or his order, at my death.' Lord Justice TURNER said: 'In order to render the indorsement and delivery of a promissory note effectual they must be such as to enable the indorsee himself to indorse and negotiate the note. That the respondent, Simon Smith, could not have done here during the testator's life.' It was accordingly held that the disposition of the notes was testamentary and invalid. It cannot be said that the condition in the indorsement which forbade payment until the donor's death was merely the condition attached by the law to every such gift; because the condition which inheres in the gift mortis causa is a subsequent condition, that the subject of the gift shall be returned if the gift fails by revocation. In the mean time the gift is executed the title has vested, the dominion and control of the donor has passed to the donee. While here the condition annexed by the donor to his gift is a condition precedent which must happen before it becomes a gift, and, as the contingency contemplated is the donor's death, the gift cannot be executed in his life-time, and, consequently, can never take effect. This view of the law was the one taken by the circuit court as the basis of its decree, in which we accordingly find no error. It is, accordingly, affirmed. Mr. Justice MILLER did not sit in this cause, and took no part in its decision.
107.US.568	1. Negotiable coupon-bonds were, without authority of law, issued in October, 1872, by a city in Nebraska, for the purpose of raising money wherewith to construct a high-school building within her limits. They were sold, and the proceeds applied accordingly. The legislature, by an act approved Feb. 18, 1873, infra, p. 571, legalized the proceedings of the city in the premises. The Constitution of the State then in force declares that "the legislature shall pass no special act conferring corporate powers," and that "no bill shall contain more than one subject, which shall be clearly expressed in its title." A purchaser of the bonds for full value, without notice of any informality in their issue, to whom the city paid the interest thereon for four years, brought suit to recover the amount of the coupons then due and unpaid. Held, 1. That as by force of the transaction the city was bound to refund the moneys he paid it in consideration of its void bonds, and as the act, by confirming them, merely recognizes the existence of that obligation, and provides a medium for enforcing it according to the original intention of the parties, no new corporate powers were thereby conferred. 2. That the title of the act is a full and apt description of its contents. 2. Under the second section of the act of Nebraska approved Feb. 25, 1875, infra, p. 573, the bonds are valid obligations, and neither it nor the said act of Feb. 18, 1873, is in conflict with the Constitution of the State which was then in force.	We cannot accept the conclusion, urged upon us by the counsel for the plaintiff in error, that the city of Plattsmouth had authority to issue the bonds in question, under the power conferred upon it as a municipal body, 'to borrow money for any purpose within its discretion,' without reference to the limit as to the amount imposed by the act of 1867, expressly authorizing it to build school-houses. Whatever implications of power as to school buildings might have been admissible, if the law conferring municipal powers had stood alone, must give place to the express declarations, with the accompanying qualifications, contained in the statute, that dealt by name with the very subject. And we must, therefore, assume, at the beginning, that while the city of Plattsmouth was authorized to erect a high-school building, it could not lawfully borrow money or issue its bonds for that purpose in excess of $15,000. We are, therefore, required to consider whether the issue of bonds involved in this litigation can be supported by the subsequent legislation which sought to cure the defects of their origin. No objection is made to either of the statutes relied on, on the ground that the constitution of Nebraska of 1867 forbade retroactive legislation. The twelfth section of article 1 of that instrument declares that 'no bill of attainder, ex post facto law, or any law impairing the obligation of contracts, shall ever be passed.' This prohibition would not include legislation of the class now in question. They are attacked, however, on other grounds. The first act,—that of February 18, 1873,—it is claimed, is made void by article 8 of section 1 of the constitution of Nebraska, which declares that 'the legislature shall pass no special act conferring corporate powers.' It is contended that the act in question, by legalizing bonds of the city, void because it had no power to issue them, is legally equivalent to an act conferring upon the city power to issue bonds, which is conferring corporate power, and, being a special act, is therefore unconstitutional. But this conclusion we cannot adopt. The act in question, so far as it relates to the bonds in suit, does not confer any corporate power upon the city in the sense of the constitution of the state. The statute operates upon the transaction itself which had already previously been consummated, and seeks to give it a character and effect different in its legal aspect from that which it had when it was in fieri. Whether such an effect may be given by a legitimate exercise of legislative power, depends upon those considerations which draw the line beyond which retroactive laws cannot pass, and is not affected by the supposed form of the enactment as a special or general act conferring corporate power. For it operates upon the rights of the parties, as determined by the equity of their circumstances and relations, and gives to them the sanction derived from subsequent confirmation, by clothing them with forms which are essential to their enforcement, but not to their existence. Within the usual limitations prescribed by our written constitutions, such as have been quoted from that of Nebraska, this may be done, provided it can be done without the destruction of rights recognized by the law as vested. In the present case, the statute in question does not impose upon the city of Plattsmouth, by an arbitrary act, a burden without consent and consideration. On the contrary, upon the supposition that the bonds issued, as to the excess over $15,000, were void, because unauthorized, the city of Plattsmouth received the money of the plaintiff in error, and applied it to the purpose intended, of building a school-house on property, the title to which is confirmed to it by the very statute now claimed to be unconstitutional, and an obligation to restore the value thus received, kept, and used, immediately arose. This obligation, according to general principles of law accepted in Nebraska, was capable of judicial enforcement. Clark v. Saline Co. 9 Neb. 516; [S. C. 4 N. W. Rep. 496;] Louisiana v. Wood, 102 U. S. 294; New Orleans v. Clark, 95 U. S. 644; Hitchcock v. Galveston, 96 U. S. 341; Chapman v. County Com'rs Douglas Co. ante, 62, and City of Parkersburgh v. Brown, 1 SUP CT. REP. 442. As was said by Mr. Justice FIELD, in New Orleans v. Clark, 95 U. S. 644-654: 'A law requiring a municipal corporation to pay a demand which is without legal obligation, but which is equitable and just in itself, being founded upon a valuable consideration received by the corporation, is not a retroactive law, no more so than an appropriation act providing for the payment of a pre-existing claim. The constitutional inhibition does not apply to legislation recognizing or affirming the binding obligation of the state, or of any of its subordinate agencies, with respect to past transactions.' As the city of Plattsmouth was bound, by force of the transaction, to repay to the purchaser of its void bonds the consideration received and used by it, or a legal equivalent, the statute which recognized the existence of that obligation, and, by confirming the bonds themselves, provided a medium for enforcing it according to the original intention and promise, cannot be said to be a special act conferring upon the city any new corporate power. No addition is made to its enumerated or implied corporate faculties; no new obligation is, in fact, created. The language of the constitution, forbidding special legislation of that description, evidently refers to grants of authority to be exercised by the body itself and in the future, and a consideration of the evil intended to be remedied by the prohibition will confine it to grants of that character, and will not include a statute like that now under discussion. Here the power of the legislative department of the state is directly exercised upon the transaction itself, and upon a matter clearly within the scope of its authority. It was the constitutional duty of the legislature 'to pass suitable laws to encourage schools and the means of instruction.' Under the terms of this authority, having created, as it did, the city of Plattsmouth a separate school-district, it might prescribe the number and character of the school-houses to be provided, and impose, if it saw fit, directly, a tax upon the locality to defray the cost of erecting and maintaining them. What the state might properly have done by direct action it may do through the public agency of a municipal body, such as the city of Plattsmouth, which, in the performance of the duty assigned, does not so much exercise a corporate power of its own as discharge a function of the statute. An illustration and example of the distinction is found in the case of Foster v. Com'rs Wood Co. 9 Ohio St. 540, where it was held that a public corporation for the construction and repair of highways was really only a part of the machinery of the state, and its officers, county or township officers discharging duties in connection therewith, and that consequently an act of the general assembly authorizing the body by name to complete the construction of a particular highway, and to make an assessment of the cost upon the property benefited, was not a special act conferring corporate power within the meaning of the constitutional prohibition. So it was held in State v. Squire, 26 Iowa, 340, that while the legislature would not, in view of the constitutional provision of that state, have the power to pass a special law incorporating an independent school-district, it would nevertheless have the power to pass a curative act, legalizing the defective organization of a school-district already in existence under the general law authorizing the creation of independent school-districts. In view of the decisions of this court and the courts of the several states in this county, affirming the capacity of municipal corporations to accept and administer trusts of property, given or devised for purposes of public charity, it would not be denied that the city of Plattsmouth might lawfully receive and apply a gift of money bestowed in trust to pay the principal and interest of the bonds involved in this litigation, as having been issued for the purpose of obtaining means with which to erect a public-school building. The administration of such a trust would not be contested on the ground that it was enlargement of its corporate powers. But the duty to repay the consideration for them, employed by it in the same uses, already existed; and its enforcement through the legislative act, which prescribed a remedy, is not more open to the same objection. It is not a special act conferring corporate power; it is merely a special act taking away from the corporation the power to interpose an unconscionable defense against a just claim, and to avoid an obligation to pay an equivalent for public benefits, which it has continued to enjoy. The very proposition involved here was maintained by the supreme court of Nebraska in the case of Com'rs Jefferson Co. v. People, 5 Neb. 127. There it was decided that a special act of the legislature, authorizing the county commissioners of Jefferson county to provide funds for the payment of certain outstanding warrants of said county, by issuing bonds, selling the same, and using the proceeds in payment of warrants issued to contractors for the erection of a court-house and jail, was valid and effectual. The court said: 'That Jefferson county is justly indebted to the relator for the amount of the warrants in question will not be controverted; and, where such is the case, there is no doubt of the power of the legislature to require the county to issue its bonds for the amount of its indebtedness.' In one aspect, this case goes beyond the argument; for it contemplated further action by the corporation it the issue of its bonds. The second statute—that of February 25, 1875—is not subject to the objection to the former, one just disposed of, for it is a general act 'to amend an act to incorporate cities of the second class and to define their powers, approved March 1, 1871, and to legalize certain taxes therein mentioned;' and the terms of its second section embrace the case of the bonds in controversy in this suit. It expressly declares 'that all bonds heretofore issued by any city of the second class in good faith for the erection of, or to procure the means for erecting, a high-school building within such city, or for heating or furnishing the same, whether issued under a general or special law providing therefor, or any bonds hereafter issued by such city in exchange for any such bonds, shall be legal and valid; and any tax heretofore or hereafter levied to pay the interest or a portion of the principal of any such bonds, not exceeding five mills on the dollar valuation of the taxable property in the city in any one year, shall be legal and valid.' Accordingly objections are made to its validity for want of conformity to other provisions of the constitution of the state, the first of which,—that it conflicts with section 19, art. 2, which declares that 'no bill shall contain more than one subject, which shall be clearly expressed in its title,'—it is claimed, applies to both acts. In regard to the special act of February 18, 1873, however, it seems to us unnecessary to say more than that the title appears to be a full and apt description of the whole contents of the act. The proceedings of the city council in reference to the construction of a high-school building, which it is the object of the act, as expressed in the title, to legalize, necessarily includes the issue of the bonds authorized by it for that purpose. In White v. City of Lincoln, 5 Neb. 505-516, it was said that 'the object of this constitutional provision is to prevent surreptitions legislation by incorporating into bills obnoxious provisions which have no connection with the general object of the bill, and of which the title gives no indication. It will be sufficient, however, if the law have but one general object, which is fairly expressed in the title of the bill.' Accordingly it was held in that case, as it was also in City of Tecumseh v. Phillips, 5 Neb. 305, that the third section of the act of February 25, 1875, which ratified expenditures by cities of the second class of moneys illegally collected for licenses for the sale of intoxicating liquors, was void, because there was nothing in the title of the act to indicate the object contemplated by that section. 'It is in nowise amendatory,' said the court in City of Tecumseh v. Phillips, supra, 'of the general incorporation law for cities of the second class, nor does it make any allusion to the legalization of any taxes whatever.' And in the same case, speaking of the entire act, the court said: 'But we fail to discover wherein it is in any particular amendatory of the general act relating to cities of the second class.' The act, therefore, may be considered as if its title were simply that of 'An act to legalize certain taxes therein mentioned.' The second section, which is the only one material in this controversy, does legalize taxes theretofore or thereafter levied to pay the interest on certain bonds, namely, such as having been theretofore issued by any city of the second class, in good faith, for the erection of, or to procure the means for erecting, a high-school building within such city, or for heating or furnishing the same, whether issued under a general or special law providing therefor, etc., are thereby declared to be legal and valid. It is impossible to say that legalizing the bonds, and the taxes levied to pay them, are two diverse subject, when to legalize the taxes necessarily makes the bonds valid; for nothing more strongly confirms an invalid bond than to make provision for its payment. We have no hesitation, therefore, in upholding the second section of the act of February 25, 1875, as a valid enactment, so far as the present objection is concerned. As we do not consider it as an act to amend the general law incorporating cities of the second class, rejecting that portion of the title, it is not subject to the further objection that it does not conform to the constitutional requirement that 'no law shall be revived or amended, unless the new act contain the entire act revived and the sections amended.' The remaining objection is not to its validity, but to its application to the present case. It is argued that the second section of the act relates only to bonds that have been issued 'under a general or special law providing therefor;' and that the bonds now in controversy were not so issued, and cannot, therefore, claim support from this provision. If by this is meant that no bonds are within the purview of this section except such as have been lawfully issued, the conclusion results in an absurdity; for it supposes an act of the legislature passed to cure the invalidity of valid bonds. If, on the other hand, the section is construed to mean that all bonds that have been issued in good faith for the purposes mentioned, and under color of law, whether general or special, but without actual authority, shall be deemed to be legal and valid, the only rational and worthy effect is given to the enactment that can be deduced from its terms. We do not doubt that such was the purpose of the legislature, and that it is the meaning of the law. In our opinion, the bonds in controversy are valid obligations of the city of Plattsmouth, under either of the two acts, of February 18, 1873, and of February 25, 1875, respectively; and the circuit court erred in its instructions to the jury to the contrary. For that error the judgment is reversed and the cause remanded, with instructions to grant a new trial.
106.US.663	1. Where the amount involved is sufficient, the citizen of a State other than Michigan, who holds bonds of a municipal corporation in Michigan, may, in the proper Circuit Court of the United States, maintain an action against it on them, or on the coupons thereto attached, although each is payable to a citizen of the State or bearer, or to bearer. 2. By the terms of the act of Michigan of March 22, 1869, township bonds in aid of a railroad company are not invalid because they were issued after the expiration of sixty days from the date when the vote in favor of issuing them was cast by the electors. 3.I n Michigan, where the execution of the instrument sued on is not put in issue by an appropriate plea, verified by affidavit, proof thereof is not required. The effect of the pleadings in this suit is to raise the question whether the bonds, if issued after such period of sixty days, are valid. 4. Such bonds may be delivered to a corporation lawfully formed by the consolidation of a corporation with that to which they were voted.	The assignments of error in this case present the following questions: (1) Whether an action at law can be maintained in the circuit court of the United States against a municipal corporation of Michigan upon municipal bonds or the coupons for interest attached thereto; (2) whether the circuit court of the United States has jurisdiction of a suit brought by a citizen of state other than Michigan to recover the amount due on an obligation of a municipal corporation of Michigan, for the payment of a sum of money to a corporation of Michigan or bearer, or to bearer; (3) whether the obligations and coupons sued on in this case could be introduced in evidence, under the pleadings, without proof that the person who signed them as township clerk actually held that office at the time his signature was affixed and the obligations were delivered; and (4) whether, since the obligations were not delivered to the corporation to which they were voted by the township, but to a corporation created by the consolidation of that corporation with another, they are valid. 1. As to the right to sue a municipal corporation of Michigan in the courts of the United States on an obligation for the payment of money. If we understand correctly the cases in the courts of Michigan to which our attention has been directed, they decide no more than that in the courts of the state the remedy for the recovery of money from a municipal corporation on a liquidated demand is by mandamus against the proper officer, to require him to do his duty under the law with respect to the descharge of the obligation which has been entered into, and that for such purposes, in that jurisdiction, an independent judgment in an action at law against the corporation is not necessary. There is no law of the state prohibiting such a suit. All that has been determined is that, in the courts of the state, a judgment is not necessary to lay the foundation for a writ of mandamus to require the officer to do his duty. In the courts of the United States, however, a mandamus can only be granted in aid of an existing jurisdiction, and in this class of cases a judgment against the corporation is an essential prerequisite to such a writ, although in the courts of the state it is not. This whole subject was fully considered at the last term in Davenport v. Dodge Co. 105 U. S. 242, where the other cases establishing the rule are cited. 2. As to the jurisdiction of the courts of the United States, in a suit by the assignee of an obligation of a municipal corporation of a state payable to a citizen of the same state or bearer, or to bearer This question was decided at the present term in Town of Thompson v. Perrine, ante, 564, 568. The act of March 3, 1875, c. 137, (1 Supp. Rev. St. 174,) which provides, section 1, that the district and circuit courts of the United States shall not 'have cognizance of any suit founded on a 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, except in cases of promissory notes negotiable by the law merchant and bills of exchange,' is certainly not a limitation on the judiciary act of September 24, 1789, c. 20, (1 St. 79,) which provided, section 11, that the same courts should not 'have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents, if no assignment had been made, except in cases of foreign bills of exchange.' Under the act of 1789, it was always held that an obligation payable to bearer, or to an individual or bearer, did not come within the prohibition of suits by assignees. Bank of Kentucky v. Wister, 2 Pet. 326; Bushnell v. Kennedy, 9 Wall. 391; Lexington v. Butler, 14 Wall. 293. 3. As to the necessity for proving that the township clerk whose signature appears on the bonds and coupons was in fact township clerk when he affixed his signature. The name of the person who signed the bonds as clerk is O. C. Gillett. That O. C. Gillett signed the bonds was admitted, but it was denied under oath that he was clerk of the township prior to the end of the summer of 1869, which was more than 60 days after the bonds were voted by the town. The statutes of Michigan and the rules of the circuit court in force when this cause was tried, provided that upon the plea of the general issue in an action upon any written instrument, under seal or without seal, the plaintiff should not be put to the proof of the execution of the instrument or the handwriting of the defendant, unless the plea was verified by affidavit. In this case the suit was on a written instrument, and the plea was the general issue. This plea, however, was not verified in broad terms, but an affidavit was filed to the effect, argumentatively, that the township clerk, whose signature was necessary under the law to the due execution of the bonds, could not have signed them before the end of the summer of 1869, because he was not clerk until after that time. The law under which the bonds were issued provided that if any township voted the aid to railroads which was authorized, it 'shall, within 60 days after the question of aid is determined by a vote of the electors, * * * issue its coupon bonds for the amount so determined to be granted.' The effect of the affidavit was to raise the question whether the bonds were valid if issued after the 60 days. The affirmative of showing that they were issued within the 60 days was probably put by the pleadings on the plaintiff. This showing he did not make. Consequently the objection to the admissibility of the bonds resolved itself into the question of their validity, issued as they were after the time. We see nothing in the statutes which takes away from the township authorities the right to execute and deliver bonds, if, for any reason, it is not done within the time named. The word 'shall,' as used in the statute, undoubtedly gives the township officers the whole of the 60 days to get the bonds out, but it certainly does not imply that if they fail to do it voluntarily within the time they cannot be compelled to do so afterwards. And if they can be compelled to do so, it necessarily follows that they should do it voluntarily. We have not been referred to any decisions by the courts of Michigan to the contrary, and, construing the statute for ourselves, we think that valid bonds may be issued after the time. This being so, the antedating does not invalidate the bonds. In this suit no attempt is made to recover for interest accruing before actual delivery. 4. As to the issue to the consolidated company. This precise question was before us at the last term in the case of New Buffalo v. Iron Company, 105 U. S. 73, and decided adversely to the claim of the plaintiff in error. We see no reason for reconsidering that case, and this cannot be distinguished from it. The judgment is affirmed.
107.US.649	1. It is the duty of the court to dismiss a suit brought to restrain the infringement of letters-patent, where the device or contrivance for which they were granted is not patentable, although such defence be not set up. 2. The invention described in reissued letters-patent No. 4240, granted to John B. Slawson, Jan. 24, 1871, is not patentable, as it is confined to putting in the ordinary fare-box used on a street car an additional pane of glass opposite to that next the driver, so that the passenger can see the interior of the box. The letters are therefore void. 3. Letters-patent No. 121,920, granted to Elijah C. Middleton, Dec. 12, 1871, are void. The fare-box, the head-light of the car, and the reflector are the elements of the contrivance described in the specification and claim for lighting the interior of the box at night, and they are old. What is covered by the letters is not patentable, as it is simply making in the top of the box an iperture through which the rays of the head-lamp are turned by means of a reflector.	The appellant insists that the dismissal of a bill because the inventions described in the patents were not patentable, when no such defense was set up in the answer, is of doubtful propriety, and is a practice unfair to the complainants. The practice was sanctioned by this court in the case of Dunbar v. Myers, 94 U. S. 187. In that case the defense set up in the answer was want of utility in the patented invention; that the patentees were not the first inventors, etc. The circuit court rendered a decree for the complainant for a large sum. When the case came to this court the decree was reversed, with directions to the court below to dismiss the bill on the ground, not set up in the answer, that the improvement described in the patent sued on did not embody or require invention and was not patentable, and the patent was therefore void. And in the case of Brown v. Piper, 91 U. S. 44, this court, speaking by Mr. Justice SWAYNE, said: 'We think this patent was void on its face,' (because the improvement described therein was not patentable,) 'and that the court might have stopped short at that instrument, and, without looking beyond it into the answers and testimony, sua sponte, if the objection was not taken by counsel, well have adjudged in favor of defendant.' We think the practice thus sanctioned is not unfair or unjust to complainants in suits brought on letters patent. If letters patent are void because the device or contrivance described therein is not patentable, it is the duty of the court to dismiss the cause on that ground whether the defense be made or not. It would ill become a court of equity to render money decrees in favor of a complainant for the infringement of a patent which the court could see was void on its face for want of invention. Every suitor in a cause founded on letters patent should, therefore, understand that the question whether his invention is patentable or not, is always open to the consideration of the court, whether the point is raised by the answer or not. We have considered the alleged improvements described in letters patent set out in complainant's bill, and agree with the conclusion reached by the circuit court that neither of them involves invention, and that both the letters patent are, therefore, void. A glance at the specification and claim of the patent granted to the complainant, Slawson, shows that the invention described therein consists simply in the placing, in the ordinary fare-box used on street cars and omnibuses, of a glass panel opposite to the glass panel next the driver, usually inserted in such boxes. The patent does not cover the fare-box; it does not cover the insertion in the side of the fare-box next the driver of a glass panel, nor a combination of these two elements. It consists merely in putting an additional pane of glass in the fare-box opposite the side next the driver, so that the passengers can through it see the interior of the box. Such a contrivance does not embody or require invention. It requires no more invention than the placing of an additional pane of glass in a show-case for the display of goods, or the putting of an additional window in a room opposite one already there. It would occur to any mechanic engaged in constructing fare-boxes that it might be advantageous to insert two glass panes,—one next the driver and the other next the interior of the car. But this would not be invention within the meaning of the patent law. Hotchkiss v. Greenwood, 11 How. 237; Phillips v. Page, 24 How. 167; Dunbar v. Myers, ubi supra. It is not a combination of the fare-box, having one glass panel with an additional glass panel, but is a mere duplication of the glass panel. Doubtless, a fare-box with two glass panels, arranged as described in the patent, is better than a fare-box with only one. But it is not every improvement that embodies a patentable invention. This rule was fairly illustrated in the case of Stimpson v. Woodman, 10 Wall. 177, in which it was held that where a roller, in a particular combination, had been used before without particular designs on it, and a roller, with designs on it, had been used in another combination, it was not a patentable invention to place designs on the roller in the first combination, and that such a change, with the existing knowledge in the art. involved simply mechanical skill, which is not patentable. In Brown v. Piper, ubi supra, it was said that when the invention was simply the application by the patentees of an old process to a new subject, without any exercise of the inventive faculty, and without the development of any idea which could be deemed new and original in the sense of the patent law, it was not patentable; and it was held that the application of a process for preserving meats and fruit, which had previously been used for preserving other perishable substances, was not patentable. A case much in point was decided by this court at the present term,—Atlantic Works v. Brady, [ante, 225,]—in which Mr. Justice BRADLEY said: '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 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.' And it was held that the placing of a screw for dredging at the stem of a screw-propeller, when the dredging had been previously accomplished by turning the propeller stern foremost and dredging with the propelling screw, was not a patentable invention. These authorities, and others that might be cited, are adverse to the appellant's case, and clearly show that the contrivance covered by the patent issued to him does not embody a patentable invention. The same authorities apply with equal force to the patent for lighting the interior of the fare-box at night by using the head-light of the car for that purpose. The elements of the contrivance, namely, the fare-box, the head-light, and the reflector, are all old. What is covered by the patent is simply the making of an aperture in the top of the fare-box, and turning the rays of the head-lamp through it into the box by means of a reflector. In other words, it is the turning of the rays of light to the spot where they are wanted by means of a reflector, and taking away an obstruction to their passage. The facts of general knowledge of which we take judicial notice (Taylor, Ev. § 4, note 2; Brown v. Piper, ubi supra) teach us that devices similar to this are as old as the use of reflectors. The new application of them does not involve invention. We are of opinion that there was nothing patentable in the contrivance described in the second patent. The result of our views is that the decree of the circuit court was right and must be affirmed.
108.US.312	larble statues, executed by professional sculptors in the studio and under the direction of another professional sculptor, whether from models just made by a professional sculptor, or from antique models whose author is unknown, are "professional productions of a statuary or of a sculptor," liable to a duty of only ten per cent. ad valorem, under the Revised Statutes, § 2504, Schedule hL	This is an action of assumpsit to recover back an excess of duties paid upon seven marble statues imported from Italy. The importers contend that these statues were liable to pay a duty of only 10 per centum ad valorem; but the collector exacted payment of 50 per centum ad valorem. The decision of the case turns upon the true construction of those provisions of the customs act which impose upon 'all manufactures of marble, not otherwise provided for, 50 per centum ad valorem;' and upon 'paintings and statuary, not otherwise provided for, 10 per centum ad valorem. But the term 'statuary,' as used in the laws now in force, imposing duties upon foreign importations, shall be understood to include professional productions of a statuary or of a sculptor only.' Rev. St. § 2504, Schedule M. The material facts, as found by the special verdict returned in the circuit court, are as follows: Of the seven statues, two were of boys, taken out and sculptured from antique original models, the author of which is unknown. The other five statues were taken out and sculptured from original models—two of angels, made by Achille de Cori, and three, representing summer, autumn and winter, made by Carlo Nicoli, both of whom were professional sculptors of good reputation, and who had won at the Royal Academy of Fine Arts at Carrara the prize of a government pension at Rome; and they were the first productions from those models. All the seven statutes were executed by Giovanni Padula and Allesandro Gemignani, professional sculptors, in the studio and under the direction of Pietro Salada, who has been a professional sculptor in Carrara for the last 34 years. The cost of the statues of the two boys was 300 lire, or $58 each; of those of the two angels, 690 lire, or $133.40 each; and of those of the three seasons, 480 lire, or $92.80 each. Judgment was given for the plaintiffs upon the special verdict, and the only question presented by the record is whether this judgment is right. The evident intent of congress in putting a much lower duty on statues which are 'professional productions of a statuary or of a sculptor' than on other 'manufactures of marble,' is to encourage the importation of works of art, by distinguishing between the productions of an artist and those of an artisan or mechanic; between what is done in a sculptor's studio, by his own hand or under his eye, and what is done by workmen in a marble-shop. In the same spirit, congress has exempted from all duty the importation of 'paintings, statues, fountains, and other works of art' which are either 'the production of American artists,' or are 'imported expressly for presentation to national institutions, or to any state, or to any municipal corporation.' Rev. St. § 2505. There is nothing in the acts of congress to limit the professional productions of a statuary or sculptor to those executed by a sculptor with his own chisel from models of his own creation, and to exclude those made by him, or by his assistants under his direction, from models or from completed statues of another sculptor, or from works of art, the original author of which is unknown. An artist's copies of antique masterpieces are works of art of as high a grade as those executed by the same hand from original models of modern sculptors. The instructions of the treasury department (pursuant to which these duties were imposed) and the argument for the appellant proceed upon the ground that the statues were made by men not really professional sculptors, though calling themselves such, and were not real works of art, but mere manufactures of marble by good artisans. If this court were at liberty to consider the testimony sent up with the record, it might, perhaps, not reach the conclusion at which the jury have arrived. But the insurmountable difficulty in the way of the appellant is that by the special verdict the jury have found in the most explicit terms that all these statues were executed in the studio of a professional sculptor, and under his direction, by two other professional sculptors. These facts being conclusively settled by that verdict, the law requires that the judgment be affirmed.
108.US.256	When a debt due to a deceased person is voluntarily paid by the debtor at his own domicil in a State in which no administration has been taken out, and in which no creditors or next of kin reside, to an administrator appointed in another State, and the sum paid is inventoried and accounted for by him in that State, the payment is good as against an administrator afterwards appointed in the State in which the payment is made, although this is the State of the domicil of the deceased.	This is an action of assumpsit on the common counts, brought in the circuit court of the United States for the western district of Tennessee. The plaintiff is a citizen of Virginia, and sues as administrator, appointed in Tennessee, of the estate of Thomas N. Quarles. The defendant is a citizen of Tennessee, and surviving partner of the firm of F. H. Clark & Co. The answer sets up that Quarles was a citizen of Alabama at the time of his death; that the sum sued for has been paid to William Goodloe, appointed his administrator in that state, and has been inventoried and accounted for by him upon a final settlement of his administration; and that there are no creditors of Quarles in Tennessee. The undisputed facts, appearing by the bill of exceptions, are as follows: Quarles was born at Richmond, Virginia, in 1835. In 1839 his mother, a widow, removed with him, her only child, to Courtland, Alabama. They lived there together until 1856, and she made her home there until her death, in 1864. In 1856 he went to Memphis, Tennessee, and there entered the employment of F. H. Clarke & Co., and continued in their employment as a clerk, making no investments himself, but leaving his surplus earnings on interest in their hands until January, 1866, when he went to the house of a cousin in Courtland, Alabama, and while there died by an accident, leaving personal estate in Alabama. On the twenty-seventh of January, 1866, Goodloe took out letters of administration in Alabama, and in February, 1866, went to Memphis, and there, upon exhibiting his letters of administration, received from defendant the sum of money due to Quarles, amounting to $3,455.22, (which is the same for which this suit is brought,) and included it in his inventory and in his final account, which was allowed by the probate court in Alabama. There were no other debts due from Quarles in Tennessee. All his next of kin resided in Virginia or in Alabama; and no administration was taken out on his estate in Tennessee until June, 1866, when letters of administration were there issued to the plaintiff. There was conflicting evidence upon the question whether the domicile of Quarles at the time of his death was in Alabama or Tennessee. The jury found that it was in Tennessee, under instructions, the correctness of which we are not prepared to affirm, but need not consider, because, assuming them to be correct, we are of opinion that the court erred in instructing the jury that if the domicile was in Tennessee they must find for the plaintiff; and in refusing to instruct them, as requested by the defendant, that the payment to the Alabama administrator before the appointment of one in Tennessee, and there being no Tennessee creditors, was a valid discharge of the defendant, without reference to the domicile. There is no doubt that the succession to the personal estate of a deceased person is governed by the law of his domicile at the time of his death; that the proper place for the principal administration of his estate is that domicile; that administration may also be taken out in any place in which he leaves personal property; and that no suit for the recovery of a debt, due to him at the time of his death, can be brought by an administrator as such in any state in which he has not taken out administration. But the reason for this last rule is the protection of the rights of citizens of the state in which the suit is brought; and the objection does not rest upon any defect of the administrator's title in the property, but upon his personal incapacity to sue as administrator beyond the jurisdiction which appointed him. If a debtor, residing in another state, comes into the state in which the administrator has been appointed, and there pays him, the payment is a valid discharge everywhere. If the debtor, being in that state, is there sued by the administrator, and judgment recovered against him, the administrator may bring suit in his own name upon that judgment in the state where the debtor resides. Talmage v. Chapel, 16 Mass. 71. The administrator, by virtue of his appointment and authority as such, obtains the title in promissory notes or other written evidences of debt, held by the intestate at the time of his death, and coming to the possession of the administrator; and may sell, transfer, and indorse the same; and the purchasers or indorsees may maintain actions in their own names against the debtors in another state, if the debts are negotiable promissory notes, or if the law of the state in which the action is brought permits the assignee of a chose in action to sue in his own name. Harper v. Butler, 2 Pet. 239; SHAW, C. J., in Rand v. Hubbard, 4 Metc. 252, 258-260; Peterson v. Chemical Bank, 32 N. Y. 21. And on a note made to the intestate, payable to bearer, an administrator appointed in one state may sue in his own name in another state. Barrett v. Barrett, 8 Greenl. 353; Robinson v. Crandall, 9 Wend. 425. In accordance with these views, it was held by this court, when this case was before it after a former trial, at which the domicile of the intestate appeared to have been in Alabama, that the payment in Tennessee to the Alabama administrator was good as against the administrator afterwards appointed in Tennessee. Wilkins v. Ellett, 9 Wall. 740. The fact that the domicile of the intestate has now been found by the jury to be in Tennessee does not appear to us to make any difference. There are neither creditors nor next of kin in Tennessee. The Alabama administrator has inventoried and accounted for the amount of this debt in Alabama. The distribution among the next of kin, whether made in Alabama or in Tennessee, must be according to the law of the domicile; and it has not been suggested that there is any difference between the laws of the two states in that regard. The judgment must, therefore, be reversed, and the case remanded with directions to set aside the verdict and to order a new trial.
109.US.235	On the question of the fact as to whether the proceeds of certain cotton had been recovered and received from the United States as part of the proceeds of cotton recovered for in the court of claims, this court reversed the decree of the circuit court.	The appellee, who was the plaintiff below, seeks to recover from the executor of Gazaway B. Lamar a sum of money, on the allegation that the testator received that money from the United States as the proceeds of 136 bales of upland cotton which belonged to the assignor of the plaintiff. Lamar recovered in the court of claims, on the first of June, 1873, a judgment against the United States for $579,343.51, as the proceeds of 3,184 bales of upland cotton and 91 bales of Sea island cotton, which Lamar owned in Savannah, Georgia, in December, 1864, at the time that city was captured by the military forces of the United States, and all of which bales were captured by said forces and shipped to the agent of the treasury department at New York, and there sold by him, and the proceeds paid into the treasury of the United States. The amount of the judgment was paid to Lamar in April, 1874. This bill was filed in August, 1879. It alleges that the 136 bales were shipped by the plaintiff's assignor to C. A. L. Lamar, now deceased, (the son of G. B. Lamar,) who received and held them as the property of such assignor; that, after the death of C. A. L. Lamar, G. B. Lamar came into possession of the 136 bales and retained such possession as the agent and fiduciary of such assignor; that the suit in the court of claims was brought for the recovery of the 136 bales, with other cotton; and that the proceeds of the 136 bales were included in said judgment, and were received by G. B. Lamar. The circuit court entered a decree in favor of the plaintiff for the agreed amount of the avails of the 136 bales, and the defendant has appealed to this court. On the question as to whether the 136 bales were embraced in Lamar's recovery, the circuit court found that they were. We are not able to concur in this conclusion. The question is one altogether of fact. It has involved the examination of the pleadings and proofs and other proceedings in the suit in the court of claims, besides a consideration of the effect of the provisions in the will of G. B. Lamar, and of an advertisement he published, and of entries he made in his books, in regard to the 136 bales, after he had received the amount of the judgment. It would not conduce to any good end to review the propositions discussed by the respective counsel, consisting largely of arithmetical calculations, in elucidation of their respective contentions. It must suffice to say that the record and proceedings of the court of claims do not show that the 136 bales were embraced in the final petition of G. B. Lamar in that court, or in the 3,275 bales for which judgment was awarded. There is not in the proofs before the court of claims any testimony in regard to the 136 bales. It may very well be that they passed into the possession of G. B. Lamar, and were seized and sent to New York and sold, and that their proceeds are now in the treasury. But the evidence before the court of claims was entirely sufficient to show that G. B. Lamar was entitled to recover the proceeds of the 3,275 bales for which he did recover, without including the 136. Every bale of the 3,275 is traced, in that evidence, into the hands of G. B. Lamar, and identified as cotton which he had purchased and paid for, as a buyer of it. The 136 bales were no part of it. The will was made in September, 1872, nearly eight months before the final petition was filed in the court of claims. That petition omitted to mention the 136 bales, they having been specially mentioned in the amended petition filed April 16, 1872, which was the petition pending when the will was made. The final petition states that it is filed 'in lieu of and as a substitute for all other petitions and amendments thereto heretofore filed in this cause.' The 136 bales, with other cotton, having been taken from the possession of G. B. Lamar and sold, he made, as he states in his will, 'claims upon the government of the United States for payment for such cotton,' which claims, the will says, ' are now before the court of claims, and also before the committee on claims of the congress of the United States.' The will directs his executors to press the claims, and gives a list of the cotton, and specifies, among it, the 136 bales, as 'belonging to a gentleman in Richmond, Virginia,' and as being cotton on which C. A. L. Lamar made advances. G. B. Lamar did, in his amended petition filed in the court of claims, April 16, 1872, make a specific claim for the proceeds of that cotton. But he dropped that claim in his final petition, and had no recovery for it. He did not receive his money till more than 10 months after he obtained judgment. The impression was on his mind that he had recovered for the 136 bales, and, under that erroneous belief, he advertised in a newspaper in Richmond for the rightful owner of the cotton to come forward and prove his ownership, and pay advances and expenses of collection, and receive the balance due. The advertisement stated that the cotton was placed in the possession of C. A. L. Lamar, and stored in Lamar's warehouse; that advances were made on it, and there were charges for storage, compressing, and cartage; that the cotton was taken by the United States; and that he had received payment for it from the treasury. He also, in April, 1874, made entries in his books stating that he had received so much money from the United States for the 136 bales, 'of which the owner is unknown, and is advertised for in Richmond, Virginia.' The evidence derived from the advertisement, and the entries in the books, is of no force except to show Mr. Lamar's own belief at the time, and cannot avail to control the internal evidence afforded by the record from the court of claims, that the 136 bales were not included in the recovery in that court. This conclusion makes it unnecessary to consider any of the other questions raised. The decree of the circuit court is reversed, and the case is remanded to that court, with direction to dismiss the bill of complaint.
107.US.691	1. The city of Parkersburg built within its limits a wharf on the bank of the Ohio River, and prescribed by ordinance certain rates of wharfage on vessels "that may discharge or receive freight, or land on or anchor at or in front of any public landing or wharf belonging to the city, for the purpose of discharging or receiving freight." A transportation company, owning duly enrolled and licensed steamers, which ply between Pittsburgh and Cincinnati and touch at the intermediate points, complained that the wharfage was extortionate, and was merely a pretext for levying a duty of tonnage. The company thereupon filed a bill in the Circuit Court, praying that the prosecution of a suit brought by the city in the State court to collect the wharfage be enjoined, and that the ordinance be declared void, and that other relief be granted. Held, thattthe character of the charges must be determined by the ordinance itself; and as it on its face imposed them for the use of the wharf only, and not for entering the port or lying at anchor in the river, the court, though it might deem them unreasonable and exorbitant, will not entertain an averment that they were intended as a duty of tonnage, nor inquire into the secret purpose of the body imposing them. 2. Wharfage is the compensation which the owner of a wharf demands for the use thereof; a duty of tonnage is a charge for the privilege of entering, or loading at or lying in, a port or harbor, and can be laid only by the United States. 3. The question as to which of these classes, if either, a charge against a vessel or its owner belongs, is one, not of intent, but of fact and law: of fact, whether the charge is imposed for the use of a wharf, or for the privilege of entering a port; of law, whether, upon the facts which are shown to exist, it is wharfage or a duty of tonnage. veniences, yet being local in their nature, and requiring special regulations at particular places, the jurisdiction and control thereof, in the absence of congressional legislation on the subject, properly belong to the States in which they are situated. 5. A suit for relief against exorbitant wharfage cannot, as one arising under the Constitution or the laws of the United States, be maintained in the Circuit Court, even though it be alleged that the wharfage was intended as a duty of tonnage; the alleged intent not being traversable.	This is an appeal from a decree dismissing a bill in chancery on demurrer. The complainant below, who is appellant here, according to the statements of the bill, is a corporation of West Virginia, organized for the purpose of carrying on a transportation business on the Ohio river, together with a general wharf and commission business; its principal office being located at the city of Parkersburg. It is the owner of several stean-boats, duly enrolled and licensed under the acts of congress, and plying between Pittsburgh, Wheeling, Parkersburg, Cincinnati, and Covington. The bill was filed against the city of Parkersburg, and its recorder and wharfmaster, to restrain the collection of certain demands for wharfage, and to recover back money previously paid on that account. It is contended that the city ordinance, under which the wharfage was demanded, is in conflict with the constitution of the United States; and this is the ground on which the jurisdiction of the circuit court of the United States was invoked. The bill alleges that many years ago the city of Parkersburg caused to be constructed on the banks of the Ohio river, at that place, a wharf or public landing, to be used by the various steam-boats trading on the river and landing at said city, and that said wharf is still controlled by the city under a certain ordinance passed by the mayor and common council in March, 1865, a copy of which was filed with the bill. By this ordinance it is ordained that every steam-boat, keel-boat, barge, flat-boat, and flat (except ferry-boats) that may discharge or receive freight, or land on or anchor at or in front of any public landing or wharf belonging to the city, or at which the city may lawfully charge and receive wharfage, for the purpose of discharging or receiving freight, shall pay the city for wharfage the following sums or rates for each respectively, to-wit: On steam-boats of less than 100 tons burden, three dollars for the first 24 hours or any part thereof, and one dollar and fifty cents for every subsequent 24 hours, or any part thereof; on steam-boats of 100 and less than 150 tons, three dollars and seventy-five cents for the first, and two dollars for every subsequent 24 hours, or any part thereof; and so on, regulating the charges according to the tonnage, and reducing them where only a small quantity of freight is discharged or received. Provision is then made for recovering the wharfage by bringing the parties before the recorder or a justice of the peace. The bill alleges that under and by virtue of this ordinance the city of Parkersburg has, ever since the organization of the complainant, required it and its agents to pay the charges provided in the ordinance for all the steam-boats owned or controlled by it, that have discharged or received freight or passengers, or landed at the said wharf, which payments have been made under protest. The bill then makes the following charge: 'Your orator further alleges that, as it is advised and believes, the said ordinance is wholly null and void, and is in conflict with those provisions of the constitution of the United States relating to the regulations of interstate commerce and prohibiting any state, without the consent of congress, from laying any duty of tonnage; and that the operation of the same tends to and does abridge the free use of the Ohio river by your orator, to which it is legally entitled, by virtue of the enrollment and license of its steam-boats, under the laws of the United States, as aforesaid. As by reference to said ordinance will appear, the rates of charges made by said city of Parkersburg upon steam-boats landing at or in front of the wharf of said city, are based upon, and regulated solely by, the 'tons burden' of said boats, and said charges are made indiscriminately, whether the boat lands or anchors at or in front of any public landing or wharf of said city. And your orator further avers that the congress of the United States has never given its consent to the passage or enforcement of said ordinance, but, on the contrary, tonnage duties are expressly prohibited by section 4220 of the Revised Statutes of the United States to be levied upon enrolled or licensed vessels trading from one port in the United States to another port within the same.' The bill further alleges that the rates charged by the ordinance are unreasonable, extortionate, and oppressive, and are made and levied as a tax upon commerce for the express purpose (under the assumed pretense of wharfage dues) of replenishing its treasury and increasing its revenue; that the cost of the wharf has been collected over and over again; that it is allowed to remain in bad repair; and that the wharfage dues collected have been used for other city purposes, paying its debts, etc.; that in the year of 1876 over $2,700 was collected from the various boats and vessels, less than $50 of which was spent on the wharf; and the same thing in other years. These facts are stated for the purpose of showing the extortionate character of the ordinance, and that it is used for the purpose of laying duties and imposts on imports and exports. The bill further shows that for the recent refusal of the complainant to pay these wharfage charges, the city of Parkersburg has instituted suits against it before the recorder under said ordinance; wherefore it prays a decree to restrain all further proceedings against the complainant by said suits or otherwise, from enforcing any judgment recovered by the city for the violation of said ordinance, or otherwise interfering with the rights of the complainant to the free use of the Ohio river by means of its steam-boats; and for the recovery of moneys already exacted from it under said ordinance, amounting to over $2,000; and that the ordinance may be declared null and void. To this bill the defendants demurred, and upon argument of the demurrer the bill was dismissed. From that decree the present appeal is taken. If the 720th section of the Revised Statutes, which declares that 'the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state,' applies to suits originally brought in the circuit courts by virtue of the act of March 3, 1875, in cases arising 'under the constitution or laws of the United States,' it is clear that so much of the bill in this case as prays for an injunction to restrain legal proceedings already instituted before the recorder of Parkersburg before it was filed, cannot be maintained. But that portion of the bill which seeks to have the wharfage ordinance declared void, and to restrain any further collections under it, and any further interference with the right of the complainant to the free navigation of the Ohio river, is not open to this objection; and perhaps the demand for a return of the wharfage already paid, (although itself of a legal nature,) may come in as incidental to the other relief. The main question to be solved is, whether, as contended by the complainant, the ordinance is void as being in violation of the constitution or any law of the United States. It is conceded by the bill that the wharf for the use of which the charges are made, though public in the sense of being open to the use of the public, belongs to the city of Parkersburg; that it was built and is maintained by the city as its property; and the ordinance on its face shows that the charges imposed for landing at or using it are imposed as and for wharfage, and nothing else. It may be extortionate in amount; but it is wharfage. The allegations of the bill that it is not real wharfage, but a duty of tonnage in the name and under the pretext of wharfage, cannot be received against the terms of the ordinance itself. This would open the door to an inquiry, in every case of wharfage alleged to be unreasonable, which would lead to great inconvenience and confusion. Neither courts nor juries would have any practicable criterion by which to judge of the secret intent with which the charge was made, whether as wharfage or as a duty of tonnage. Such an inquiry, if allowed, would bring into question not only the intent of municipal but of legislative bodies. When the question is one of reasonable or unreasonable wharfage, we know what to do with it. It is a question known to the laws; and the modes of redress for unreasonable wharfage are fixed and settled. But whether a charge imposed is a charge of wharfage or a duty of tonnage, must be determined by the terms of the ordinance or regulation which imposes it. They are not the same thing; a duty of tonnage is a charge for the privilege of entering, or trading, or lying in, a port or harbor; wharfage is a charge for the use of a wharf. Exorbitant wharfage may have a similar effect as a burden on commerce as a duty of tonnage has; but it is exorbitant wharfage, and not a duty of tonnage; and the remedy for the one is different from the remedy for the other. The question whether it is the one or the other is not one of intent, but one of fact and law; of fact, as whether the charge is made for the use of a wharf or for entering the port; of law, as whether, according as the fact is shown to exist, it is wharfage or a duty of tonnage. The intent is not material, and is not traversable. It is not like the case of a deed absolute on its face, but intended as a mortgage; there, the intent is the result of an agreement between the parties, which may be proved, and which it would operate as a fraud on one of the parties not to allow to be proved. Nor is it like the case of a mistake in an instrument, by which the intent of the parties contravened; in that case, also, the actual agreement between them may be shown for the purpose of correcting the instrument. Nor is it like the case of an intent to deceive or defraud or to commit a crime; there, the intent is a material part of the offense charged; while in the present case a supposed intent is suggested for the purpose of making of one act another and a different act. It is, in truth, more like the case of an averment to contradict the express terms of a written instrument by parol. It is contended, indeed, that the terms of the ordinance in question show that it was intended to exact a duty of tonnage, and is not confined to the prescription of charges for wharfage; and the words 'anchor at or in front of any public landing or wharf,' as describing vessels to be charged, are relied on as sustaining this view, since, (as contended,) they embrace vessels not using the wharf. But we do not understand this to be the meaning and effect of the words. The whole phrase should be taken together, and, thus read, it is evidently confined to vessels using or intending to use the wharf. The passage consists of two distinct clauses: (1) 'Every steam-boat that may discharge or receive freight at any public landing or wharf;' (2) 'or that may land on or anchor at or in front of any public landing or wharf for the purpose of discharging or receiving freight.' The last clause as well as the first evidently points to those vessels only which land or anchor at or before a wharf for the purpose of using it. Sometimes it may happen that the depth of water in the river, or intervening vessels lying at the wharf, will not allow a vessel to get close along-side of the wharf, and yet she may desire to connect with it in some manner, by planks or by the deck of an intervening boat, barge, or float, so as to discharge or receive freight and passengers upon or from the wharf. Such cases are properly described by the language used; and we have no evidence that any other construction has been given to it. The complaint does not allege that the supposed obnoxious application of the ordinance has ever been made against any of its vessels, or against any vessels. The charge of the bill is only 'that under and by virtue of said ordinance the city of Parkersburg has, ever since the time of organization of your orator, required your orator, its agents, and servants, to pay to it the charges provided in said ordinance for all steam-boats owned or controlled by your orator that have discharged or received freight or passengers, or landed at its said wharf.' There is no complaint that wharfage has been exacted when the complainant's vessels have merely anchored in the stream, or have moored at any other place than the city's wharf; or when they have stopped at or in front of the wharf itself for any other purpose than that of discharging or receiving freight and passengers. This makes the case a very different one from that which was presented in Cannon v. City of New Orleans, 20 Wall. 577. There the ordinance objected to imposed levee duties 'on all steam-boats which shall moor or land in any part of the port of New Orelans;' and this court could do no otherwise than hold that such an ordinance had the effect of laying a duty of tonnage, against the express prohibition of the constitution. The same view had previously been taken of an act of the legislature of Lonisiana authorizing the port-wardens of New Orleans to demand and receive five dollars from every vessel arriving in that port, whether called on to perform any service or not, (Steam-ship Co. v. Port-wardens, 6 Wall. 31;) and of a law of Texas which required every vessel arriving at the quarantine station of any town on the coast of Texas to pay five dollars for the first hundred tons, and one and a half cents for each additional ton, (Peete v. Morgan, 19 Wall. 581.) So, when a law of New York required all vessels of a certain class, which should enter the port of New York, or load or unload, or make fast to any wharf therein, to pay a certain rate per ton, this was held to be an unconstitutional imposition, because it applied to all vessels, whether they used a wharf or not. Inman Steam-ship Co. v. Tinker, 94 U. S. 238. All these were clear cases of duty on tonnage as distinguished from wharfage; and the terms of the ordinances and laws in question were very different from those of the ordinance now under consideration. We think it very clear that the ordinance in question cannot be regarded as imposing any other charge than that of wharfage. The fact that the rates charged are graduated by the size or tonnage of the vessel is of no consequence in this connection. This does not make it a duty of tonnage in the sense of the constitution and the acts of congress. So we have expressly decided in several recent cases. Cannon v. New Orleans, 20 Wall. 577; Packet Co. v. Keokuk, 95 U. S. 80; Packet Co. v. St. Louis, 100 U. S. 423; Guy v. Baltimore, Id. 434; Packet Co. v. Catlettsburg, 105 U. S. 559. When the constitution declares that 'no state shall, without the consent of congress, lay any duty of tonnage;' and when congress, in section 4220 of the Revised Statutes, declares that 'no vessel belonging to any citizen of the United States, trading from one port within the United States to another port within the United States, or employed in the bank, whale, or other fisheries, shall be subject to tonnage tax or duty if such vessel be licensed, registered, or enrolled,'—they mean by the phrases 'duty of tonnage,' and 'tonnage tax or duty,' a charge, tax, or duty on a vessel for the privilege of entering a port; and although usually levied according to tonnage, and so acquiring its name, it is not confined to that method of rating the charge. It has nothing to do with wharfage, which is a charge against a vessel for using or lying at a wharf or landing. The one is imposed by the government; the other, by the owner of the wharf or landing. The one is a commercial regulation, dictated by the general policy of the country upon considerations having reference to its commerce or revenue; the other is a rent charged by the owner of the property for its temporary use. It is obvious that the mode of rating the charge in either case, whether according to the size or capacity of the vessel, or otherwise, has nothing to do with its essential nature. It is also obvious that since a wharf is property, and wharfage is a charge or rent for its temporary use, the question whether the owner derives more or less revenue from it, or whether more or less than the cost of building and maintaining it, or what disposition he makes of such revenue, can in no way concern those who make use of the wharf and are required to pay the regular charges therefor; provided, always, that the charges are reasonable and not exorbitant. It is undoubtedly a general rule of law, in reference to all public wharves, that wharfage must be reasonable. A private wharf that is, a wharf which the owner has constructed and reserves for his private use—is not subject to this rule; for, if any other person wishes to make use of it for a temporary purpose, the parties are at liberty to make their own bargain. That such wharves may be had and owned, even on a navigable river, is not open to controversy. It was so decided by this court in the case of Dutton v. Strong, 1 Black, 23, and in Yates v. Milwaukee, 10 Wall. 497. Whether a private wharf may be maintained as such, where it is the only facility of the kind in a particular port or harbor, may be questioned. Sir MATTHEW HALE says: 'If the king or subject have a public wharf unto which all persons that come to that port must come and unlade or lade their goods as for the purpose because they are the wharves only licensed by the king, according to the statutes of 1 Eliz. c. 11, or because there is no other wharf in that port, as it may fall out where a port is newly erected; in that case there cannot be taken arbitrary and excessive duties for cranage, wharfage, pesage, etc.; neither can they be enhanced to an immoderate rate, but the duties must be reasonable and moderate, though settled by the king's license or charter.' Harg. Law Tr. 77. Be this, however, as it may, it is an undoubted rule of universal application that wharfage for the use of all public wharves must be reasonable. But then the question arises, by what law is this rule established, and by what law can it be enforced? By what law is it to be decided whether the charges imposed are or are not extortionate? There can be but one answer to these questions. Clearly it must be by the local municipal law; at least, until some superior or paramount law has been prescribed. At Parkersburg, it is the law of West Virginia. The rule referred to is a rule of the common law, undoubtedly, but it has force in West Virginia because the common law is the law of that state, and not because it is the law of the United States. The courts of the United States do not enforce the common law in municipal matters in the states because it is federal law, but because it is the law of the state. We have said that the reasonableness of wharfage must be determined by the local law until some paramount law has been prescribed. By this we mean that until the local law is displaced or overruled by paramount legislation adopted by congress, the courts have no other guide, no other law to administer on the subject, than the local or state law. Our system of government is of a dual character—state and federal. The states retain general sovereignty and jurisdiction over all local matters within their limits; but the United States, through congress, is invested with supreme and paramount authority in the regulation of commerce with foreign nations and among the several states. This has been held to embrace the regulation of the navigable waters of the United States, of which the Ohio river is one. In the exercise of this authority over navigable waters, congress has, from the commencement of the government, erected light-houses, breakwaters, and piers, not only on the sea coast, but in the navigable rivers of the country; and has improved the navigation of rivers by dredging and cleaning them, and making new channels and jetties, and adopting every other means of making them more capable of meeting the growing and extending demands of commerce. It has extended its supervision in an especial manner to the Ohio river. Among other things, it has overcome the obstacle presented by the falls at Louisville by the construction of an expensive canal. It has created ports of delivery along the river, of which the city of Parkersburg itself is one, and others are at Pittsburgh, Wheeling, Cincinnati, Louisville, Madison, Jeffersonville, New Albany, Evansville, Paducah, and Cairo. It has regulated the bridges which have been thrown across the river by authority of the states. It authorized the Wheeling bridge to stand after this court had declared it to be a nuisance, requiring the officers of all vessels to regulate their pipes and chimneys so as not to interfere with the bridge, (10 St. 112;) thus extending its common protection to commerce by land and commerce by water. It required the Newport and Cincinnati bridge to be removed or placed at a greater height above the water, after having been constructed in accordance with the laws of the states and of the United States. 16 St. 572. Now, wharves, levees, and landing places are essential to commerce by water, no less than a navigable channel and a clear river. But they are attached to the land; they are private property, real estate; and they are primarily, at least, subject to the local state laws. Congress has never yet interposed to supervise their administration; it has hitherto left this exclusively to the states. There is little doubt, however, that congress, if it saw fit, in case of prevailing abuses in the management of wharf property,—abuses materially interfering with the prosecution of commerce,—might interpose and make regulations to prevent such abuses. When it shall have done so, it will be time enough for the courts to carry its regulations into effect by judicial proceedings properly instituted. But until congress has acted, the courts of the United States cannot assume control over the subject as a matter of federal cognizance. It is the congress, and not the judicial department, to which the constitution has given the power to regulate commerce with foreign nations and among the several states. The courts can never take the initiative on this subject. There are cases, it is true, which are so national in their character, and in which it is so essential that a general or national rule should exist, that any interference by the state legislatures therewith is justly deemed to be an invasion of the power and authority of the general government; and in such cases the courts will interpose to prevent or redress the commission of acts done or attempted to be done under the authority of such unconstitutional laws. In such cases the non-action or silence of congress will be deemed to be an indication of its will that no exaction or restraint shall be imposed. Such is the import of the various passenger cases in which this court has pronounced unconstitutional any tax, duty, or other exaction imposed by the states upon emigrants landing in the country. Such is also the import of those cases in which it has been held that state laws imposing discriminating burdens upon the persons or products of other states are unconstitutional; it being deemed the intent of congress that interstate commerce shall be free, where it has not itself imposed any restrictions thereon. See The Passenger Cases, 7 How. 283, 462; Cooley v. The Port-wardens, 12 How. 319; Gilman v. Philadelphia, 3 Wall. 713; Crandall v. Nevada, 6 Wall. 42; Ward v. Maryland, 12 Wall. 418, 432; State Freight Tax Case, 15 Wall. 232, 279; Welton v. State, 91 U. S. 275; Henderson v. Mayor of N. Y. 92 U. S. 259, 272; People of N. Y. v. Compagnie Generale Transatlantique, 107 U. S. —; [S. C. ante, 87.] But the case before us is not one of the kind referred to. Though the use of public wharves may be regulated by congress as a part of the commercial power, it certainly does not belong to that class of subjects which are in their nature national, requiring a single uniform rule; but to that class which are in their nature local, requiring a diversity of rules and regulations. To quote the words of Mr. Justice CURTIS in Cooley v. The Port-wardens, 12 How. 319: 'The power to regulate commerce embraces a vast field, containing not only many, but exceedingly various subjects, quite unlike in their nature; some imperatively demanding a single uniform rule, operating equally on the commerce of the United States in every port; and some, like the subject now in question, [which was pilotage], as imperatively demanding that diversity which alone can meet the local necessities of navigation. * * * Whatever subjects of this power are in their nature national, or admit only of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by congress. That this cannot be affirmed of laws for the regulation of pilots and pilotage is plain. The act of 1789 contains a clear and authoritative declaration by the first congress that the nature of this subject is such that until congress should find it necessary to exert its power, it should be left to the legislation of the states; that it is local and not national; that it is likely to be best provided for, not by one system or plan of regulations, but by as many as the legislative discretion of the several states should deem applicable to the local peculiarities of the ports within their limits.' No words could be more fitly applied to the subject of the regulation of wharves than are here used by the court in reference to pilotage. It is true, no act of congress has relegated the subject of wharfage to the states, as was done in the case of pilotage; but this was not necessary; the regulation of wharves belongs prima facie, and in the first instance, to the states, and would only be assumed by congress when its exercise by the states is incompatible with the interests of commerce; and congress has never yet assumed to take that regulation into its own hands, or to interfere with the regulation of the states. The power of the states to legislate in matters of a local character, where congress has not by its own action covered the subject, is quite fully discussed by Mr. Justice FIELD in delivering the opinion of this court in Co. of Mobile v. Kimball, 102 U. S. 691, where the distinction taken in Cooley v. The Port-wardens, between those subjects which are national in their character and require uniformity of regulation, and those which are local and peculiar to particular places, is commented upon and enforced. Among other things it is there said: '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 contemptated. 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 with 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.' See, also, the remarks of the chief justice in Hall v. De Cuir, 95 U. S. 488. It is not necessary to cite other cases. The principle laid down in Cooley v. The Port-wardens has become fully recognized and established in our jurisprudence; and it is manifest that no subject can be more properly classified as local in its nature, and as requiring the application of local regulations, than that of wharves and wharfage. From this view it is plain that the courts of the United States have no authority to ignore the state laws and regulations on the subject of wharves and wharfage, and to declare them invalid by reason of any supposed repugnancy to the constitution or laws of the United States. As already remarked, the courts cannot take the initiative in this matter. Congress must first legislate before the courts can proceed upon any such ground of paramount jurisdiction. If the rates of wharfage exacted are deemed extortionate or unreasonable, the courts of the United States, (in cases within their ordinary jurisdiction,) as well as the courts of the states, must apply and administer the state laws relating to the subject; and these laws will probably, in most cases, be found to be sufficient for the suppression of any glaring evils. At all events, there is not at present any federal law on the subject by which relief can be obtained. In the various bridge cases that have come before the courts of the United States, where bridges (or dams) have been erected by state authority across navigable streams, the refusal to interfere with their erection has always been based upon the absence of prohibitory legislation by congress, and the power of the states over the subject in the absence of such legislation. Where the regulation of such streams by congress has been only of a general character, such as the establishment of ports and collection districts thereon, it has been held that the erection of bridges, furnished with convenient draws, so as not materially to interfere with navigation, is within the power of the states, and not repugnant to such general regulation. The former cases on this subject were reviewed in Escanaba & L. M. Transp. Co. v. City of Chicago, decided at the present term of this court, and reported in 2 SUP. CT. REP. 185. It is believed that no case can be found in which state laws, or regulations under state authority, on subjects of a local nature, have been set aside on the ground of repugnance to the power of regulating commerce given to congress, unless it has appeared that they were contrary to some express provision of the constitution, or to some act of congress, or that they amounted to an assumption of power exclusively conferred upon congress. In the case of Gibbons v. Ogden, 9 Wheat. 1, it was held that as the navigation of all public waters of the United States is subject to the regulation of congress, a license granted under the laws and by the authority of the United States to a steam-boat to carry on the coasting trade, entitled such boat to navigate all such waters, notwithstanding the existence of a state law granting to certain individuals the exclusive right to navigate a portion of said waters lying within the state; and that such exclusive grant was void as being repugnant to the regulation made by congress. Chief Justice MARSHALL, delivering the opinion of the court in that case, said: 'The court will enter upon the inquiry, whether the laws of New York, as expounded by the highest tribunal of that state, have, in their application to this case, come into a collision with an act of congress, and deprived a citizen of a right to which the act entitles him.' Subsequent cases are to the same effect, among which, in addition to those already cited in this opinion, we may refer to Crandall v. Nevada, 6 Wall. 35; Ward v. Maryland, 12 Wall. 418; Welton v. Missouri, 91 U. S. 275; Henderson v. Mayor of N. Y. 92 U. S. 259; and People of N. Y. v. Compagnie Generale Transatlantique, supra. The case of State v. Wheeling Bridge Co. 13 How. 518, was a peculiar one. The Wheeling bridge, as originally constructed, presented a complete obstacle to the passage of steam-boats with high chimneys, such as navigated the Ohio river to and from Pittsburgh; and hence presented a case of interference with navigation analogous to that of the exclusive monopoly granted to Fulton and Livingston by the state of New York, which was the ground of complaint in the case of Gibbons v. Ogden. But, besides this, it was a case in which this court exercised its original jurisdiction by reason of the character of the parties, a state being the complainant in the suit; and, having jurisdiction on this ground, it was competent for the court to decide upon the lawfulness or unlawfulness of the structure in reference, not only to the laws of the United States, but also to the local municipal law, and to the general law relating to the mutual rights of the states. The charter granted to the Wheeling Bridge Company by the state of Virginia had expressly provided 'that if the said bridge shall be so constructed as to injure the navigation of said river, the said bridge shall be treated as a public nuisance, and shall be liable to abatement upon the same principles and in the same manner that other public nuisances are.' In addition to this in 1789 an act was passed by the state of Virginia consenting to the erection of the state of Kentucky out of its territory on certain condition, among which was one 'that the use and navigation of the river Ohio, so far as the territory of the proposed state or the territory that shall remain within the limits of this commonwealth lies thereon, shall be free and common to the citizens of the United States,' and to this act the assent of congress was given. 1 St. 180. 'This compact,' the court said, 'by the sanction of congress, has become a law of the Union.' Upon all these grounds, it was held that the state of Pennsylvania, having large interests which were affected by the erection of the bridge, was entitled to a decree for its prostration as a nuisance, unless such alterations should be made in its construction as to leave the navigation of the river unimpaired. This case, therefore, cannot be relied on any more than the other cases referred to, to show that the courts of the United States have any peculiar jurisdiction as such to vindicate the supposed rights of commerce and navigation against the laws of the states, in matters of a local nature such as the regulation of wharfage is, where no express provision of the constitution is violated and no act of congress has been passed to regulate the subject. As no act of congress has been passed for the regulation of wharfage, and as there is nothin the constitution to prevent the states from regulating it, so long as congress sees fit to abstain from action on the subject, our conclusion is that it is entirely within the domain and subject to the operation of the state laws. The effect of this conclusion upon the present case is obvious. The gravamen of the bill is really nothing but a complaint against exorbitant rates of wharfage. These rates are established by a municipal body, itself the proprietor of the wharves, and professing to act under the authority of state law. It cannot be supposed that the law authorizes exorbitant charges to be made; but whether the charges exacted are exorbitant or not can only be determined by that law. It is clear, therefore, that the complainant, in filing its bill in the United States court on the ground that the wharfage complained of is in violation of the constitution or laws of the United States, has totally misconceived its rights and the proper means of obtaining redress. Unless it has some other ground for coming into the federal court it must seek redress in the state courts; and whether the question of reasonableness of wharfage is submitted to the determination of the one forum or the other, it is only determinable by the laws of the state within whose jurisdiction the wharf is situated. Since the parties are all citizens of West Virginia, and since the case cannot be sustained as one 'arising under the constitution or laws of the United States,' there was no error in the decree dismissing the bill of complaint. The decree of the circuit court is, therefore, affirmed. Mr. JUSTICE HARLAN dissenting. The city of Parkersburg -- which has been created a port of delivery in conformity with the laws of the United States -- exacts and collects for the use of its wharf by boats engaged in commerce on the Ohio River certain fees or dues, called wharfage charges, which, pursuant to the ordinance of May 17, 1865, are, in every case, measured by the tonnage or capacity of the boat so using the wharf. It is conceded by the demurrer to the bill that from these fees the city has long since been reimbursed for the actual cost of constructing the wharf; that the amount annually collected from boats for its use is largely in excess of any expense incurred in its maintenance and repair; that it has been permitted to become and remain in bad repair, at times almost unfit for use; that nearly all the money so raised is applied by the city to increase its general revenue and pay it indebtedness; and, lastly, that the wharfage charges are unreasonable in amount and oppressive. The opinion of the court, if I do not wholly misapprehend it, proceeds upon the broad ground that municipal wharfage charges, even when measured by the tonnage of the boat, and however much in excess of fair and reasonable compensation, are not duties of tonnage within the meaning of the Constitution, and that their exaction infringes no right given or secured by the Constitution or the existing statues of the United States. If, however, such charges are duties of tonnage, or if their collection violates any right, so given or secured, then a case unquestionably arises under the Constitution or laws of the United States, of which the Circuit Court, under the act of March 3, 1875, c. 137, can take original jurisdiction, without reference to the citizenship of the parties. I had supposed, and am still of opinion, that a vessel or boat, duly enrolled and licensed under the laws of the United States (as those of the appellant are conceded to be), and engaged in commerce upon the Ohio, a public navigable water, is entitled, in virtue of the Constitution and laws of the United States, to enter any port on that river, and also to land at any wharf established for public use, without being subjected (apart from mere police regulation) to any burden tax, or duty therfor, beyond reasonable compensation to the owner of the wharf for its use. Such I have understood to be the doctrine announced in Cannon v. New Orleans, 20 Wall. 577; Packet Company v. Keokuk, 95 U.S. 80; Packet Company v. St. Louis, 100 id. 423; Vicksburg v. Tobin, id. 430. The court holds that Congress, under the power to regulate commerce with foreign nations and among the several States, may, by statute, provide for the protection, through the courts, of those engaged in commerce upon the public navigable waters of the United States against unreasonable charges for the use of wharves by boats. But without further legislation, specifically directed to that end, the courts, I submit, should adjudge that local regulations, such as those adopted by the city of Parkersburg, are within the prohibition upon the States to lay any duty of tonnage, and are also inconsistent with the compact between Virginia and Kentucky which this court, in State of Pennsylvania v. Wheeling, &c., Bridge Co., 13 How. 518, 564, declared had become, by the sanction of Congress, a law of the Union. In that compact it is declared that "the use and navigation of the river Ohio, so far as the territory of the proposed State, or the territory that shall remain within the limits of this Commonwealth [Virginia], lies thereon, shall be free and common to the citizens of the United States." In the opinion of the court a duty of tonnage is defined to be a charge, tax, or duty on a vessel for the mere privilege of entering or lying in a port. The city of Parkersburg cannot, therefor, constitutionally impose a charge, tax, or duty upon, or for the exercise of, that privilege. Now, do the Constitution and the existing laws of the United States extend their protection no further than to secure the bare, naked right of entering a port free from local burdens or duties upon its exercise? May not the boat, in virtue of the Constitution and existing laws, also land at any wharf, at least at any public wharf, on the Ohio River for the purpose of discharging and receiving freight and passengers? Of what value would be the right to enter the port without the privilege of landing its passengers and freight? Is not the substantial privilege of landing passengers and freight necessarily involved in the right of entering the port? If so, it would seem that the right to land a boat at a public wharf on a navigable water of the United States is as fully protected by the Constitution and the existing laws of the United States as that of entering the port. A charge, tax, or duty imposed upon the exercise of the right to land is consequently, for every practical purpose, as much a duty of tonnage as a charge, tax, or duty upon the privilege of entering the port. The constitutional provision that "no State shall, without the consent of Congress, lay any duty of tonnage;" the power given Congress to regulate commerce among the States; the statutes of the United States, in the exercise of that power, providing for licensing vessels, establishing ports of entry, and imposing duties and inflicting penalties upon officers of boats engaged in navigation; and the sanction by Congress of the compact between Virginia and Kentucky, declaring that the use and navigation of the Ohio River shall be free to all citizens of the United States, -- give to the boats of the appellant the right to enter the port of Parkersburg and land at the wharf provided for the use of boats engaged in navigation. It is a right given and secured by the Constitution and the existing laws of the United States, and, therefore, one which the courts of the Union may protect against invasion or violation. For its protection additional legislation does not seem to be necessary, since the Circuit Court has original jurisdiction of all suits arising under the Constitution and laws of the United States when the matter in dispute exceeds a prescribed amount. These principles are entirely consistent with the city's ownership of the wharf and with the right to demand fair compensation for its use. As decided in the before-mentioned cases, the city may require all who use its wharf by landing thereat, or in any other way, to pay what such use is reasonably worth. It cannot, as the court states, rightfully demand more. Reasonable compensation for the use by boats of the additional facilities furnished to commerce by means of wharves, even when such compensation is measured by the capacity of the boats, is not, within the meaning of the Constitution and the laws of the United States, an infringement of the right of free commerce upon the public navigable waters of the United States. Upon this ground the wharfage charges imposed by the cities of St. Louis, Vicksburg, and Keokuk were sustained. But it is an entirely different matter when a municipal corporation assumes in effect, if not in terms, to burden the constitutional privilege of entering the port of any city, situated on a public navigable stream, with the condition that if the boats land at the public wharf of that city, it must submit to the payment of larger compensation for the use of that wharf than the corporation has the legal authority to demand. It requires no further legislation by Congress to enable the courts of the Union to protect the rights of free commerce against exactions of that kind. It is, I think, their duty to adjudge all such local regulations to be in conflict with the supreme law of the land. To burden the exercise of a constitutional right with conditions which materially impair its value, or which, practically, compel the abandonment of the right rather than to submit to the conditions, is, in law, an infringement of that right. The opinion of the court, I repeat, rests necessarily upon the ground that the enforced exaction and collection by a municipal corporation of unreasonable compensation for the use of its wharf by a boat, duly enrolled and licensed under the laws of the United States, and engaged in commerce upon the Ohio River, do not infringe or impair any right given or secured either by the Constitution or the existing laws of the United States. To that proposition I am unable to give my assent. For the reason stated, I dissent from the opinion and judgment.
108.US.477	The question considered as to when the opinion of the highest court of a State may be examined for the purpose of ascertaining whether the judgment involves the denial of any asserted right under the Constitution, laws, or treaties of the United States. In view of the statutory requirement that the justices of the Supreme Court of Illinois shall file and spread at large upon the records of the courts written opinions in all cases submitted to it, such opinions may be examined, in connection with other portions of the record, to ascertain whether the judgment or decree necessarily involves a federal question within the reviewing power of this court. The act of the general assembly of Illinois, in force July 1st, 1875, validating loans or investments previously made in that State by corporations of other States or countries authorized by their respective charters to invest or loan money, is not in conflict with the contract clause of the federal Constitution, nor with that part of the Fourteenth Amendment forbidding a State from depriving any person of property without due process of law.	The first point to be considered relates to the jurisdiction of this court. In behalf of the defendant in error it is insisted that it does not appear from the record that the decision of the supreme court of Illinois was adverse to any asserted right under the constitution, laws, or treaties of the United States, nor that the judgment or decree complained of could not have been passed without the determination of any such federal question. Dugger v. Bocock, 104 U.S. 603; Murdock v. City of Memphis, 20 Wall. 590. This proposition depends upon the inquiry whether the opinion of the state court, which is made part of the transcript, can be examined for the purpose of ascertaining the grounds upon which that court based its final decree. In Gibson v. Chouteau, 8 Wall. 317; Rector v. Ashley, 6 Wall. 142; and Williams v. Norris, 12 Wheat. 117, it was ruled that the opinion of the state court constituted no part of the record, for the purpose of determining whether this court will re-examine the final judgment or decree. And in Parmelee v. Lawrence, 11 Wall. 38,—where the question arose as to the effect to be given to the certificate of the chief justice of the state court, showing that a federal question was raised and decided adversely to the party who brought the case here for review,—it was said: 'If this court should entertain jurisdiction upon a certificate alone, in the absence of any evidence of the question in the record, then the supreme court of the state can give the jurisdiction in every case where the question is made by counsel in argument.' To the same effect are Lawler v. Walker, 14 How. 149, and Railroad v. Rock, 4 Wall. 180. But in Murdock v. City of Memphis, 20 Wall. 633, the subject was again under consideration, by reason of the omission from the act of 1867 of that provision in the twenty-fifth section of the act of 1789 which restricted this court, when reviewing the final judgment or decree of the highest court of a state, to the consideration of such errors as appeared 'on the face of the record.' It was there said that, in determining whether a federal question was raised and decided in the state court, 'this court has been inclined to restrict its inquires too much by this express limitation of the inquiry 'to the face of the record." 'What was the record of a case,' the court observed, speaking by Mr. Justice MILLER, 'was pretty well understood as a common-law phrase at the time that statute was enacted. But the statutes of the states, and new modes of proceedings in those courts, have changed and confused the matter very much since that time. It is in reference to one of the necessities thus brought about that this court long since determined to consider as part of the record the opinions delivered in such cases by the supreme court of Louisiana. Grand Gulf R. Co. v. Marshall, 12 How. 165; Cousin v. Blanc's Ex'r, 19 How. 202. And, though we have repeatedly decided that the opinions of other state courts cannot be looked into to ascertain what was decided, wes see no reason why, since this restriction is removed, we should not so far examine those opinions, when properly authenticated, as may be useful in determining that question. We have been in the habit of receiving the certificate of the court, signed by its chief justice or presiding JUDGE, ON THAT POINT, THOUGH NOT AS CONClusive, and these opinions are quite as satisfactory, and may more properly be treated us part of the record than such certificates.' The opinion of the state court in the present case is properly authenticated, and there is, in addition, the certificate of its chief justice, showing that the present plaintiff in error not only claimed that the deed of trust by the National Life Insurance Company gave, when executed, a lien superior to that asserted by the United States Mortgage Company under Lombard's mortgage, but that the act of the legislature of Illinois, in force July 1, 1875, in so far as it attempted to validate mortgages such as the one taken by that company from Lombard, was in conflict, as well with the contract clause of the constitution of the United States as with that part of the fourteenth amendment which prohibits a state from depriving a person of property without due process of law; further, that the latter claim was decided adversely to plaintiff in error. We cannot, therefore, doubt that in the existing state of the law it is our duty to examine the opinion of the supreme court of Illinois, in connection with other portions of the record, for the purpose of ascertaining whether this writ of error properly raises any question determined by the state court adversely to a right, title, or immunity under the constitution or laws of the United States, and specially set up and claimed by the party who brings the writ. Any difficulty existing upon this subject is removed by that provision of the Revised Statutes of Illinois which requires, not only that the justices of the supreme court of the state shall deliver and file written opinions in cases submitted to it, but that 'such opinions shall also be spread at large upon the records of the court.' Rev. St. Ill. 1874, p. 329, c. 37, § 16. This statutory provision would seem to bring the case within the rule which permits an examination of the opinions of the supreme court of Louisiana to ascertain whether the case was determined upon any ground necessarily involving a federal question within the reviewing power of this court. The opinion of the state court (93 Ill. 483) in this case, shows that the decree is based upon these grounds: (1) That the laws of Illinois, in force when the mortgage of August 22, 1872, was executed, as well as its public policy, as disclosed in legislative enactments for may years, prohibited the United States Mortgage Company from taking mortgages upon real property, in that state, to secure the repayment of money loaned; consequently, that no title passed to it under or by virtue of that mortgage. (2) That such mortgage was, however, validated by the act in force July 1, 1875. This last proposition was, as the opinion shows, contested in the state court by the present plaintiff in error, upon the grounds to which reference is made in the certificate of its chief justice. We are here met by the suggestion that the decree can be sustained, apart from the validating act of 1875, upon the ground that the mortgage of Lombard to the United States Mortgage Company was not inconsistent with the statutes of Illinois in force at the time of its execution, or with any public policy declared in the legislation of that state. This view is based upon Stevens v. Pratt, 101 Ill. 207, and Commercial Union Assurance Co. v. Scammon, 102 Ill. 46, determined subsequently to the decree in this case. Those cases directly involved the validity of mortgages upon real estate taken from other parties by the United States Mortgage Company prior to the act of July 1, 1875. The decision in each of them was that a loan made by a foreign corporation, prior to that act, to a citizen of Illinois, and secured by mortgage, was neither prohibited by any legislation of that state, nor contrary to its public policy, and that such mortgage could be foreclosed and the title to the mortgaged real estate thereby passed. So much of the opinion of the supreme court of Illinois in this case as held to the contrary was expressly declared in Stevens v. Pratt and Commercial Union Assurance Co. v. Scammon, to be erroneous. But it is contended, in behalf of plaintiff in error, that the decree below, in so far as it rests upon the invalidity of Lombard's mortgage, is an adjudication, as between the parties to this case, of a purely local question, of which, upon writ of error, we may not take cognizance; consequently, it is argued, this court, without reference to the later decisions of the state court, this court, without reference question here raised upon the basis established by that court in this case, viz., that Lombard's mortgage was, when given, inoperative, under the local law, to pass title to the United States Mortgage Company. Without expressing any opinion as to the soundness of this position, and assuming, for the purposes of this case only, that Lombard's mortgage was, for the reasons given by the state court, invalid under the local law, we proceed to inquire whether the act of 1875, in its application to that mortgage, is in conflict with any provision of the constitution of the United States. That the act in question is not repugnant to the constitution, as impairing the obligation of a contract, is, in view of the settled doctrines of this court, entirely clear. Its original invalidity was placed by the court below upon the ground that the statutes and public policy of Illinois forbade a foreign corporation from taking a mortgage upon real property in that state to secure a loan of money. Whether that inhibition should be withdrawn was, so far, at least, as the immediate parties to the contract were concerned, a question of policy rather than of constitutional power. When a legislative department removed the inhibition imposed, as well by statute as by the public policy of the state, upon the execution of a contract like this, it cannot be said that such legislation, although retrospective in its operation, impaired the obligation of the contract. It rather enables the parties to enforce the contract which they intended to make. It is, in effect, a legislative declaration that the mortgagor shall not, in a suit to enforce the lien given by the mortgage, shield himself behind any statutory prohibition or public policy which prevented the mortgagee, at the date of the mortgage, from taking the title which was intended to be passed as security for the mortgage debt. We repeat here what was said in Satterlee v. Mattewson, 2 Pet. 412, and, in substance, in Watson v. Mercer, 8 Pet. 110, that 'it is not easy to perceive how a law, which gives validity to a void contract, can be said to impair the obligation of that contract.' The doctrine of those cases was approved, at the present term, in Ewell v. Daggs, [ante, 408,] whe, speaking by Mr. Justice MATTHEWS, it was said, touching legislation of this character, 'that the right of a defendant to avoid his contract is given 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 contract, which, contrary to law, he actually made, is just ground for imposing upon him, by subsequent legislation, the liability he intended to incur.' But it is contended that by his purchase, prior to the passage of the act of 1875, of the note secured by the deed of trust given by the National Life Insurance Company, the plaintiff in error acquired a vested right of property, of which he could not, under the fourteenth amendment of the constitution, be deprived by subsequent legislation. We do not perceive that Gross was, by that act, deprived of any substantial right of property. If, as held by the court below, in this case, the title to the real estate did not pass from Lombard at the date and by virtue of his mortgage, and if, because of its invalidity under the laws and public policy of the state, he was at liberty to convey a complete title to the insurance company, we have seen that the latter took the title subject to the mortgage, and, in addition, expressly assumed to pay the amount of the debt due from Lombard to the mortgage company. Apart from the supposed inability of the mortgage company, resulting from the statutes and public policy of the state, to take title by mortgage to the premises, Lombard was personally liable to it for the money he had borrowed. He could not have escaped that personal liability upon the ground that the mortgage, in so far as it gave a lien upon the property, was invalid. The claim of the company against him for the money he obtained from it was separable from, and wholly independent of, any lien upon the premises. And, as between Lombard and the insurance company, that personal liability of the former of the mortgage debt was protected by the very terms of the conveyance to the latter. If the acceptance of title, subject to the mortgage, did not, because of its invalidity, give a lien upon the premises, it is clear that Lombard, as against the insurance company, had, upon recognized principles of equity, a vendor's lien for so much of the purchase money as was equal to, or was represented by, the debt due from him to the part of gage company. Of the existence of that liability upon the part of Lombard, and of the agreement by the insurance company to protect him against it, Gross had notice from the deed of trust. He claims under the insurance company, and can assert no right inconsistent with its obligation, as part of the purchase money, to meet Lombard's debt to the mortgage company. Without the act of 1875, a court of equity, in enforcing a lien for the note held by Gross, could not have ignored the equitable lien which, as vendor, Lombard had for his protection against the mortgage debt, subject to which, as we have seen, he passed the title to the insurance company. The entire argument in behalf of Gross proceeds upon the erroneous ground that when he purchased the note in question there was no lien upon the property in favor of any one for any amount whatever, except that given by the deed of trust to secure the note for $12,273. The effect, then, of the act of 1875 was not to deprive Gross of any superior exclusive lien upon the premises. It only enabled the mortgage company to enforce the lien attempted to be given by the mortgage of 1872, rather than leave the property subject to a lien for a like amount in favor of Lombard, from whom the insurance company, under which Gross claims, purchased. This view, without presenting others leading to the same result, indicates that the act of 1875 was not inconsistent with that clause of the constitution of the United States which inhibits a state from depriving any person of property without due process of law. The federal question having been correctly determined, the decree is affirmed.
109.US.278	1. A fire insurance policy contained this clause : "This insdrance may be terminated at any time at the request of the assured, in which case the company shall retain only the customary short rates for the time the policy has been in force. The insurance may also be terminated at any time at the option of the company, on giving notice to that effect and refunding a ratable proportion of the premium for the unexpired term of the policy. It is a part of this contract that any person other than the assured, who may have procured the insurance to be taken by this company, shall be deemedto be the agent of the assured named in this policy, and not of this company under any circumstances whatever, or in any transactions relating to this insurance :" Red, that this clause imports nothing more than that the person obtaining the insurance was to be deemed the agent of the insured in matters immediately connected with the procurement of the policy ; 'that where his employment did not extend beyond the procurement of the insurance, his agency ceased upon the execution of the policy, and subsequent notice to him of its termination by the company was not notice to the insured. 2. Parol evidence of usage or custom among insurance men to give such notice to the person procuring the insurance was inadmissible to vary the terms of the contract. 3.' The doctrine reaffirmed, that when jurisdiction of the circuit court depends upon" the citizenship of the parties, such citizenship, or the facts which in' legal intendment constitute it, must be distinctly and positively averred in the pleadings, or appear affirmatively and with equal distinctness in other parts of the record. An averment that parties reside, or that a firm does business, in. a particular State, or that a firm is "of' that State, is not sufficient to 'holv citizenship in such State. 4. Where the record does not show a case within the jurisdiction of a circuit court, this court will take notice of that fact, although no question as to jurisdiction had been raised by the parties.	The charge, in connection with the opinion delivered by the learned judge who presided at the trial, indicates that, in his judgment, the words in the eighth clause—'It is a part of this contract that any person, other than the assured, who may have procured the insurance to be taken by this company, shall be deemed to be the agent of the assured named in this policy'—were intended to be qualified by the words 'in any transaction relating to this insurance.' Upon this ground it was ruled that notice of the termination of the policy was properly given to Anthony, who personally procured the insurance. We do not concur in this interpretation of the contract. The words in their natural and ordinary signification import nothing more than that the person obtaining the insurance was to be deemed the agent of the insured in all matters immediately connected with the procurement of the policy. Representations by that person in procuring the policy, were to be regarded as made by him in the capacity of agent of the insured. His knowledge or information, pending negotiations for insurance, touching the subject-matter of the contract, was to be deemed the knowledge or information of the insured. When the contract was consummated by the delivery of the policy he ceased to be the agent of the insured, if his employment was solely to procure the insurance. What the company meant by the clause in question, so far as it relates to the agency, for the one party or the other, of the person procuring the insurance, was, to exclude the possibility of such person being regarded as its agent, 'under any circumstances whatever, or in any transaction relating to this insurance.' This, we think, is not only the proper interpretation of the contract, but the only one at all consistent with the intention of the parties as gathered from the words used. There is, in our opinion, no room for a different interpretation. If the construction were doubtful then the case would be one for the application of the familiar rule that the words of an instrument are to be taken most strongly against the party employing them, and therefore, in cases like this, most favorably to the insured. The words are those of the company, not of the assured. If their meaning be obscure it is the fault of the company. If its purpose was to make notice, to the person procuring the insurance, of the termination of the policy, equivalent to notice to the insured, a form of expression should have been adopted which would clearly convey that idea, and thus prevent either party from being caught or misled. As the uncontradicted evidence was that Anthony's agency or employment extended only to the procurement of the insurance, the jury should have been instructed that his agency ceased when the policy was executed, and that notice to him, subsequently, of its termination was ineffectual to work a rescission of the contract. At the trial below evidence was offered by the company, and was permitted, over the objection of plaintiffs, to go to the jury, to the effect that, when this contract was made, there existed in the cities of New York and Brooklyn an established, well-known general custom in fire insurance business, which authorized an insurance company, entitled upon notice to terminate its policy, to give such notice to the broker by or through whom the insurance was procured. This evidence was inadmissible, because it contradicted the manifest intention of the parties as indicated by the policy. The objection to its introduction should have been sustained. The contract, as we have seen, did not authorize the company to cancel it upon notice merely to the party procuring the insurance,—his agency, according to the evidence, not extending beyond the consummation of the contract. The contract, by necessary implication, required notice to be given to the insured, or to some one who was his agent to receive such notice. An express written contract, embodying in clear and positive terms the intention of the parties, cannot be varied by evidence of usage or custom. In Barnard v. Kellogg, 10 Wall. 383, this court quotes with approval the language of Lord LYNDHURST, in Blackett v. Royal Ex. Assurance Co. 2 Cromp. & J. 249, that 'usage may be admissible to explain what is doubtful; it is never admissible to contradict what is plain.' This rule is based upon the theory that the parties, if aware of any usage or custom relating to the subject-matter of their negotiations, have so expressed their intention as to take the contract out of the operation of any rules established by mere usage or custom. Whatever apparent conflict exists in the adjudged cases as to the office of custom or usage in the interpretation of contracts, the established doctrine of this court is as we have stated. Partridge v. Ins. Co. 15 Wall. 573; Robinson v. U. S. 13 Wall. 365; The Delaware, 14 Wall. 603;Nat. Bank v. Burkhardt, 100 U. S. 692. The record in this case presents a question of jurisdiction, which, although not raised by either party in the court below or in this court, we do not feel at liberty to pass without notice. Sullivan v. Steam-boat Co. 6 Wheat. 450. As the jurisdiction of the circuit court is limited, in the sense that it has no other jurisdiction than that conferred by the constitution and laws of the United States, the presumption is that a cause is without its jurisdiction unless the contrary affirmatively appears. Turner v. Bank of North America, 4 Dall. 8; Ex parte Smith, 94 U. S. 456; Robertson v. Cease, 94 U. S. 649. In the last case it is said that 'where jurisdiction depends upon the citizenship of the parties, such citizenship, or the facts which in legal intendment constitute it, should be distinctly and positively averred in the pleadings, or they should appear affirmatively and with equal distinctness in other parts of the record.' Ry. Co. v. Ramsey, 22 Wall. 322; Briges v. Sperry, 95 U. S. 401. In Brown v. Keene, 8 Pet. 115, it is declared not to be sufficient that jurisdiction may be inferred argumentatively from averments in the pleadings; that the averments should be positive. The present case was commenced in the supreme court of New York, and was thence removed, on the petition of the defendant, to the circuit court of the United States for the eastern district of New York. The record does not satisfactorily show the citizenship of the parties. The complaint, filed in the state court, shows that the firm of William R. Grace & Co., composed of William R. Grace, Michael P. Grace, and Charles R. Flint, is doing business in New York, and that William R. Grace and Charles R. Flint are residents of that state. The petition for the removal of the cause shows that the defendant is a corporation of the state of Missouri; that William R. Grace and Charles R. Flint reside in New York; and that Michael P. Grace is a resident of some state or country unknown to defendant, but other than the state of Missouri. The record, however, fails to show of what state the plaintiffs are citizens. They may be doing business in and have residence in New York, without necessarily being citizens of that state. They are not shown to be citizens of some state other than Missouri. Bingham v. Cabot, 3 Dall. 383; Abercrombie v. Dupuis, 1 Cranch, 343; Jackson v. Twentyman, 2 Pet. 136; Sullivan v. Fulton Steam-boat Co., supra; Hornthal v. Collector, 9 Wall. 565; Brown v. Keene, supra; Robertson v. Cease, supra. It is true that the petition for removal, after stating the residence of the plaintiffs, alleges 'that there is, and was at the time when this action was brought, a controversy therein between citizens of different states.' But that is to be deemed the unauthorized conclusion of law which the petitioner draws from the facts previously averred. Then there is the bond given by the defendant on the removal of the cause, which recites the names of the firm of William R. Grace & Co., and describes it as 'of the county of Kings and state of New York.' If that bond may be considered as part of the record for the purpose of ascertaining the citizenship of the parties, the averment that the plaintiffs are 'of the county of Kings and state of New York' is insufficient to show citizenship. Bingham v. Cabot, 3 Dall. 382; Wood v. Wagnon, 2 Cranch, 9. As the judgment must be reversed and a new trial had, we have felt it to be our duty, notwishstanding the record as presented to us fails to disclose a case of which the court below could take cognizance, to indicate, for the benefit of parties at another trial, the conclusion reached by us on the merits. And we have called attention to the insufficient showing as to the jurisdiction of the circuit court, so that, upon the return of the cause, the parties may take such further steps touching that matter as they may be advised. The judgment is reversed and the cause remanded, with directions to set aside the judgment, and for such further proceedings as may not be inconsistent with this opinion.
109.US.421	1. An action against a marshal of the United States for seizing a stock of goods more than $5i00 in value, under authority of a writ from a district court of the United States in proceedings in bankruptcy, the suit being on his official bond, and the suretieg therein being joined as codefendants, is a suit of a civil nature arising under the Constitution and laws of the United States, which may be removed from the State courts to the federal courts. 2. A district court of the United States sitting in bankruptcy has jurisdiction to order the seizure and detention of goods, the property of the bankrupt, although in possession of ar~ther under claim of title. The officer, in a subsequent action against him for obedience to that order, may justify by proof that the title to the property at the time of seizure was in the bankrupt. If the local State laws are in conflict with this right, they will not be regarded as having any application to it. Share v. Doyle, 102 U. S. 680, approved and followed.	The action of the circuit court in the removal of the cause from the state court is assigned for error, and is first to be considered. The suit was pending in the state court, but was not at issue, when the removal act of March 3, 1875, took effect, and the right of removal is regulated by its provisions. The ground of the removal was that the suit, being one of a civil nature at law, in which the matter in dispute, exclusive of costs, exceeded $500 in value, arose under the constitution and laws of the United States. It is clear that the circuit court did not err in directing the removal of the suit from the state court; for, if we look at the nature of the plaintiff's cause of action and the grounds of the defense, as set forth in his petition, it is apparent that the suit arose under a law of the United States. The action, as we have seen, was founded on the official bond of Packard as marshal of the United States for that district, his sureties being joined as co-defendants, and the acts complained of as illegal and injurious being charged to be breaches of its condition. The bond was required to be given by section 783, Rev. St., and section 784 expressly gives the right of action as follows: 'In the case of a breach of the condition of a marshal's bond, any person thereby injured may institute, in his own name and for his sole use, a suit on said bond and thereupon recover such damages as shall be legally assessed, with costs of suit, for which execution may issue for him in due form. If such party fails to recover in the suit, judgment shall be rendered and execution may issue against him for costs in favor of the defendant; and the United States shall in no case be liable for the same.' Section 785 and 786 contain provisions regulating the suit, the latter prescribing the limitation of six years after the cause of action has accrued, after which no such suit shall be maintained, with the usual saving in behalf of persons under disabilities. The counsel for plaintiff in error assumes in argument that the suit was to recover damages for alleged trespasses. It was plainly upon the bond itself, and therefore arose directly under the provisions of an act of congress. Gwin v. Breedlove, 2 How. 29; Gwin v. Barton, 6 How. 7. In McKee v. Rains, 10 Wall. 22, the removal of which was held to be unlawful, was made under the supposed authority of the act of March 3, 1863, and that of April 9, 1866. After the removal of the cause it was put at issue by the filing, on the part of the defendants, of an answer and an amended answer. In these answers it was alleged that in a proceeding in bankruptcy against Dreyfus & Co., duly commenced in the district court for that district by David Valentine & Co. as creditors, an order was made directing 'that the marshal take provisional possession of all the property of the said defendants, real and personal, belonging to the said firm of E. Dreyfus & Co., or the individual members thereof, and particularly the merchandise pretended to have been transferred to Moses Feibelman, atDelta, Louisiana, and all of the books of account, bankbooks, and papers of or relating to the business of said firm of E. Dreyfus & Co., and hold the same subject to the further orders of this court;' that a writ was issued in pursuance of that order to the defendant Packard, commanding him to execute said order, which is the writ mentioned in the plaintiff's petition; that, in obedience to the command of the said writ, the said marshal did take into his possession and custody the goods and property therein described and referred to, and none other; and that the said goods and property so taken and held are the same as those mentioned in the plaintiff's petition, the same having come into the possession of the plaintiff in pursuance of a fraudulent conspiracy between the plaintiff and Moses Feibelman and the members of the firm of E. Dreyfus & Co., the bankrupts, the object of which was to prevent the same from coming into the possession of the assignee in bankruptcy of said bankrupts, and so to cheat and defraud their creditors, the said goods and property being, when so seized, the property of said bankrupts, and not of the said Moses Feibelman, nor of the plaintiff, neither of whom were entitled to the possession of the same. The plaintiff moved to strike from the answer the foregoing defense, which motion was overruled. This ruling of the court is assigned for error. The ground on which this assignment of error is predicated is, that by the law of Louisiana a person in possession of personal property as owner, claiming title, cannot be disturbed in that possession by a seizure under judicial process running against another person; that a transfer in fraud of creditors cannot be attacked by a seizure by the marshal or sheriff, under an execution against the debtor, of the property in the hands of a third possessor; and that, consequently, in this suit, in which it was admitted that the goods had been taken out of the possession of the plaintiff, it was not competent to set up as a defense actual title in the bankrupts. In support of this proposition, we are referred by counsel to various sections of the Revised Civil Code of Louisiana, and to numerous decisions thereon by the supreme court of that state; and the statement is made that the decision of this court in Hozey v. Buchanan, 16 Pet. 215, which, it is admitted, is not reconcilable with the conclusion insisted upon, was made without the point having been mentioned or considered as to the law of Louisiana, under which the case arose. But it is entirely immaterial, in our view of the case, what the law of Louisiana upon the point is, for the reason that that law has no application to it. The question relates, not to any law of that state, but to a law of the United States, and is, whether under the bankrupt act of 1867 the district court of the United States, sitting in bankruptcy, has jurisdiction to order the seizure and detention of goods, the property of the bankrupt, although in possession of another under claim of title, and whether, in a subsequent action against the officer for obedience to such an order, he may justify the seizure by proof that the title to the property was at the time in the bankrupt. This was the very point decided by this court in Sharpe v. Doyle, 102 U. S. 686, a reference to which makes it unnecessary to repeat the grounds of the conclusion, that in such a case the defense here allowed, if established, should prevail. All the other exceptions taken during the trial were directed to the admission of testimony in support of this defense, and are disposed of when the defense itself is adjudged to be valid. There is, therefore, no error in the record, and the judgment is affirmed.
110.US.81	1. It appearing on examination of the record after argument that the jurisdiction of the court over the cause is in doubt, the court of its own motion took notice of the question and ordered it argued. 2. § 1, ch. 137, act of March 3d, 1875, 18 Stat. 470, confers upon Circuit Courts of the United States original jurisdiction in controversies between citizens of different States, or citizens of a State and foreign States, citizens or subjects, where the matter in dispute exceeds, exclusive of costs, the sum of $500, and further provides as follows: "Nor shall any Circuit or District Court 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, except in cases of promissory notes, negotiable by the law merchant, and bills of exchange." § 2 of that act authorizes the removal of similar causes as to parties and amounts from State courts to Circuit Courts of the United States, but without imposing the restriction as to assignees and assignments. Held, That the restriction upon the commencement of suits contained in § 1 does not apply to the removal of suits under § 2. 3. When this court has given a construction to relative provisions in different parts of a statute, and Congress then makes a new enactment respecting the same subject-matter, with provisions in different sections bearing like relations to each other, and without indicating a purpose to vary from that construction, the court is bound to construe the two provisions in the different sections of the new statute in the same sense which, id previous statutes, had uniformly been given to them, and not invent a new application and relation of the two clauses. 4. A policy of insurance against loss by fire contained a clause to the effect that in case of loss the assured should submit to an examination under oath by the agent of the insurer, and that fraud or false swearing should forfeit the policy. The assured, after loss, submitted to such examination, and made false answers under oath respecting the purchase and payment of the goods assured. Although it appeared that the statevOL. cx-6 ments were not made for the purpose of deceiving the insurer, but for the purpose of covering up some false statements previously made to other parties: Ned, That the motive which prompted them was immaterial, since the questions related to the ownership and value of the goods, and were material, and that the attempted fraud was a breach of the condition el the policy and a bar to recovery.	These actions were tried in the court below at the same time, before the same jury, and, by stipulation of parties, were heard in this court upon one record, the issues and questions in them respectively being the same. They were originally commenced in the district court of the state of Minnesota for the county of Ramsey, the plaintiffs in error being plaintiffs below. The suits were founded on policies of insurance against fire issued by the several defendants upon a stock of dry goods in St. Paul, to Frances E. Barritt, who having sold the property insured to William Murphy, assigned to him, for his benefit, the several policies of insurance, with the assent of the insurance companies, the defendants. After the loss, Murphy assigned the policies of insurance and his claims under the same, for value, to the plaintiffs in error, who brought suit thereon on February 11, 1878. On March 7, 1878, the several defendants filed petitions for the removal of the causes to the circuit court of the United States, alleging that the plaintiffs were citizens of the state of New York, and the defendants, respectively, citizens of Massachusetts, or Missouri, or aliens, subjects of Great Britain, in the dominion of Canada, being corporations created by the laws of those governments respectively. The record does not show anything respecting the citizenship of Murphy, the plaintiff's assignor, and it does not appear, therefore, whether, in case the assignment had not been made, he could have brought suit upon the policies of insurance against the defendants in the circuit court of the United States. No question concerning the jurisdiction of that court was made by counsel, either on the trial or in this court; but, after having been argued here at the bar on the merits, the doubt upon the right of the court below to entertain jurisdiction arose so seriously as, in our opinion, to require argument upon the point. That has now been submitted and considered, the conclusion we have reached requiring an affirmance of the jurisdiction. The question is whether, under the second section of the act of March 3, 1875, (18 St. 470,) a suit of a civil nature, brought in a state court, where the matter in dispute exceeds the sum or value of $500, and in which there is a controversy between citizens of different states, or between citizens of a state and foreign states, citizens or subjects, may be removed into the circuit court, which suit, because it is founded on a contract in favor of an assignee, could not have been brought in the circuit court if no assignment had been made, not being the case of a promissory note, negotiable by the law-merchant, or of a bill of exchange. That section of the act is confined to the subject of removals of suits from the state to the circuit courts, and expressly provides that where there is a controversy between citizens of different states, or between citizens of a state and aliens, the suit in which it arises may be removed by either party; while the first section, providing that the circuit courts shall have original cognizance of the same character of cases, concurrent with the courts of the several states, nevertheless declares that they shall not '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, except in cases of promissory notes negotiable by the law-merchant, and bills of exchange.' The exception out of the jurisdiction, as to suits begun in the circuit courts, contained in this clause, does not, by its terms, nor by the immediate context, apply to suits commenced in state courts and afterwards removed to the circuit courts, but, it is argued, that it must apply from the reason and necessity of the case. The ground of this argument is that no reason can be assigned for limiting the jurisdiction in suits first brought in the circuit courts which does not apply equally to those removed into them from state courts; and that if the limitation is not applied to the latter, the effect will be thereby to remove it from the former, by enabling parties, forbidden to commence their actions in the circuit court, to transfer them at will to that court, after first formally bringing them in a state court. Such, ind ed, seems to be the result neccessarily to be anticipated from this construction of the act, and the argument, ab inconvenienti, must be admitted to be cogent. An attempt to meet it is made by seeking to limit, by construction, the right of removal given by the second section to both parties, without qualification, to the defendant only in cases where, if exercised by the plaintiff, it would create jurisdiction in the circuit court in favor of an assignee whose assignor could not have sued in that court originally. This proposed construction is based upon the words of the clause in the first section of the act, which forbids the circuit court to take cognizance of any suit founded on contract in favor of an assignee, which, it is agrued, may be taken to mean that when the jurisdiction is invoked by the defendant by a removal from the state court, it cannot be deemed to be exerted in favor of the assignee, but rather in favor of the adverse party. But this, we think, is a refinement upon the language of the clause not justified by its natural import, nor by admitted rules of interpretation. The words, 'in favor of an assignee,' were evidently used, not to distinguish between the plaintiff and the defendant in the suit, but between the assignee and his assignor, so as not to give the favor to the former of bringing a suit which was denied to the latter. The question, however, we think, is satisfactorily answered by recurring to the state of the law as it existed under the judiciary act of 1789, (1 St. 78,) until the passage of the act of March 3, 1875. The eleventh section of the judiciary act corresponds to the first section of the act of 1875, describing in similar terms the character of the suits of which the circuit courts should have original cognizance, and containing a similar exception out of that jurisdiction of suits 'to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents, if no assignment has been made, except in cases of foreign bills of exchange.' The twelfth section of the act of 1789 corresponds to the second section of the act of 1875, limiting, however, the right to remove a suit begun in a state court to the defendant alone, where he is an alien, or a citizen of a state other than that where the suit has been brought, and of which the plaintiff is a citizen. It will be seen, therefore, on a comparison of the two statutes, that the chief differences between them are—(1) that the act of 1875 enlarges the original jurisdiction of circuit courts, based on the citizenship of the parties, to all cases of controversy between citizens of different states and between citizens of a state and aliens, retaining substantially the same exception as to suits upon contracts brought by an assignee, when the assignee could not have sued in the circuit court, but not including negotiable paper; and (2) that the act of 1875 gives to either party the right of removal from a state court to the circuit court, instead of confining it to the defendant. The exception, out of the original jurisdiction, as to assignees of non-negotiable contracts, occupies in both statutes the same relative position, qualifying the provisions of the section in which it is contained as to suits commenced in the circuit court, and not being found in, nor necessarily connected with, that regulating the removal of suits from the state courts. Under the judiciary act of 1789 the question was several times presented to this court for decision, whether the exceptions in the eleventh section of the act applied to the right of removal given in the twelfth section, and was uniformly answered in the negative. The very question arose directly in Green v. Custard, 23 How. 484. Mr. Justice GRIER, delivering the opinion of the court, said: 'If Green had been a citizen of Texas, and Custard had claimed a right as indorsee of a citizen of Texas to bring his suit in the courts of the United States, because he (Custard) was a citizen of another state, the case would have occurred which is included in the proviso to the eleventh section of the act, which restrains the jurisdiction of the court. But the United States court had jurisdiction of this case by virtue of the twelfth section. It is a right plainly conferred on Green, a citizen of Massachusetts, when sued by a citizen of Texas in a state court of Texas, no matter what the cause of action may be, provided it demand over five hundred dollars. The exception of the eleventh section could have no possible application to the case.' The same conclusion was reached in Bushnell v. Kennedy, 9 Wall. 387, in which, however, the prior decision in Green v. Custard does not appear to have been mentioned by counsel or court. This was the established law at the time of the passage of the act of March 2, 1867, (14 St. 558), known as the Local Prejudice Removal Act, which for the first time conferred upon the plaintiff, as well as the defendant, the right to remove a suit brought by him in a state court when the controversy was between a citizen of the state where the suit was brought and a citizen of another state, upon making and filing an affidavit that he had reason to and did believe that, from prejudice or local influence, he would not be able to obtain justice in such state court. The case of the City of Lexington v. Butler, 14 Wall. 282, was removed by the plaintiff in the action, under this act, from the state court to the circuit court. The question of jurisdiction was raised on the ground that the suit, which was founded on interest coupons attached to bonds issued by the city of Lexington and payable to bearer, could not have been brought in the circuit court on account of the restriction contained in the eleventh section of the judiciary act. It was decided, however, that the case was not within that exception, the holder of such an instrument not being an assignee, within the meaning of the act. But the courtwent further, and speaking through Mr. Justice CLIFFORD, said: 'Suppose, however, the rule is otherwise, still the objection must be overruled, as the suit was not originally commenced in the circuit court. Suits may properly be removed from a state court into the circuit court in cases where the jurisdiction of the circuit court, if the suit had been originally commenced there, could not have been sustained, as the twelfth section of the judiciary act does not contain any such restriction as that contained in the eleventh section of the act defining the original jurisdiction of the circuit courts. Since the decision in the case of Bushnell v. Kennedy, 9 Wall. 387, all doubt upon the subject is removed, as it is there expressly determined that the restriction incorporated in the eleventh section of the judiciary act 'has no application to caser removed into the circuit court from a state court;' and it is quite clear that the same rule must be applied in the construction of the subsequent acts of congress extending that privilege to other sections not embraced in the twelfth section of the judiciary act.' By this construction of the act of 1867 it was placed within the power of a plaintiff, on filing the requisits affidavit, to transfer from the state court to the circuit court a suit which he could not have commenced in it, the precise objection which is made to the construction now given to the second section of the act of 1875. It was in contemplation of these previous statutes, and of the judicial decisions construing them, that congress passed the act of 1875, giving to plaintiffs as well as defendants unrestrained liberty to remove the cases specified in the second section from a state court to a circuit court, and we are bound to presume in full view and upon consideration of the very inconveniences which are now relied on as the ground for limiting the right of removal by force of the restricti e clause in the first section of the act. In our opinion this is not admissible. We are bound to take the words of the law in their usual, ordinary, literal meaning, and to construe the two provisions in the different sections in the same sense which, in previous statutes, had uniformly been given to them, and not invent a new application and relation of the two clauses without any indication whatever of any intention on the part of congress to that effect. It was, perhaps, with foresight of possible practical inconveniences to result from the extension of the right of removal effected by the act of 1875, and in order to furnish means for preventing evasions of the limits of the jurisdiction of the courts of the United States under the forms of the law, that in the fifth section of the act it was provided, that if 'it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a suit or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require.' However that may be, we cannot, on the mere ground of a policy of convenience, change the settled rules of construction according to which for so long a period these and similar statutes have been administered. The question of jurisdiction having been thus answered in the affirmative, it becomes necessary to consider the errors assigned upon the rulings of the court at the trial. These appear from a bill of exceptions and a certificate of division of opinion between the judges before whom the trial was had, and which, to understand the exceptions, it is necessary to set out in full. It is as follows: It was set out in the answer and relied on as a defense that the policy of original insurance made to Frances E. Barritt had been fraudulently procured for her by one Johnson, upon false representations, greatly overvaluing the stock insured; that Murphy received the assignment of the stock and policy with knowledge of the fraud, and that the pretended sale to him by Mrs. Barritt was without consideration, and merely colorable and fictitious; that Murphy consequently never acquired or had any insurable interest in the stock and property insured; t at after the fire Murphy, in making proof of loss, stated under oath that the actual cash value of the property insured, at the time of the fire, amounted to $35,491.61, and that the same belonged to him; that the property insured was injured to the amount of $26,827.06, and that of said amount $6,463.39 was the cost and value of goods totally destroyed, and $20,360.67 was the amount of the loss on that part of the stock damaged but not destroyed, whereas in truth and in fact the cash value of the goods insured, at the time of the fire, did not exceed $18,000, and the total amount of the loss and damage thereto by fire did not exceed $5,000, and that said goods did not belong to Murphy, as he well knew; 'that thereafter the said Murphy was examined under oath, at the city of St. Paul, by an agent of the defendant, as provided in said policy, before J. D. O'Brien, Esq., and before R. B. Galusha, Esq., who were then and there respectively notaries public within and for the county of Ramsey, and in such examination the said Murphy did swear that he had purchased said stock from said Barritt, and that he was the sole owner thereof, and that no other person had any interest therein, and that he had fully paid for the same, each and every of which statements as to said purchase, ownership, interest, payment, and the manner thereof, were wholly false, as said Murphy well knew.' It is quite obvious that upon the issues, as made in the pleadings and actually tried, it was material to show what title and interest Murphy had at the time of the loss in the property insured. If he had no insurable interest, that certainly would have been a defense. The object of the provisions in the policies of insurance, requiring the assured to submit himself to an examination under oath, to be reduced to writing, was to enable the company to possess itself of all knowledge, and all information as to other sources and means of knowledge, in regard to the facts, material to their rights, to enable them to decide upon their obligations, and to protect them against false claims. And every interrogatory that was relevant and pertinent in such an examination was material, in the sense that a true answer to it was of the substance of the obligation of the assured. A false answer as to any matter of fact material to the inquiry, would be fraudulent. If it made, with intent to deceive the insurer, would be fraudulent. If it accomplished its result, it would be a fraud effected; if it failed it would be a fraud attempted. And if the matter were material and the statement false, to the knowledge of the party making it, and willfully made, the intention to deceive the insurer would be necessarily implied, for the law presumes every man to intend the natural consequences of his acts. No one can be permitted to say, in respect to his own statements upon a material matter, that he did not expect to be believed; and if they are knowingly false and willfully made, the fact that they are material is proof of an attempted fraud, because their materiality, in the eye of the law, consists in their tendency to influence the conduct of the party who has an interest in them, and to whom they are addressed. 'Fraud.' said Mr. Justice CATRON, in Lord v. Goddard, 13 How. 198, 'means an intention to deceive.' 'Where one,' said SHIPLEY, C. J., in Hammatt v. Emerson, 27 Me. 308-326, 'has made a false representation, knowing it to be false, the law infers that he did so with an intention to deceive.' 'If a person tells a falsehood, the natural and obvious consequence of which, if acted on, is injury to another, that is fraud in law.' BOSANQUET, J., in Foster v. Charles, 7 Bing. 105; Polhill v. Walter, 3 Barn. & Adol. 114; Sleeper v. Ins. Co. 56 N. H. 401; Leach v. Republic F. Ins. Co. 58 N. H. 245. An attempt is made by counsel for the plaintiffs in error to distinguish between matters that are material only as evidence and matters material to the contract and liability of the de endants in error thereunder, and in argument the distinction is illustrated by the following statement: 'Where the question is as to the extent of the loss, and the assured know ingly exaggerates his loss, and makes false statements concerning the same, his conduct must of necessity be held fraudulent, for he invites the company to take a false position, to assume new and unjust obligations, to pay a loss that has not been sustained and does not exist, to do that which will prejudice and damage the company. But if the assured had made a true statement of his actual loss, and then answered falsely, for personal reasons, as to the parties from whom he had purchased the goods, or the value of those purchased from a certain house, then there could be no fraud, because there could be no prejudice or damage. The questions would be material as evidence, but not material as the rights and liabilities of the company.' But this position is untenable. The fact whether Murphy had an insurable interest in the merchandise covered by the policy was directly in issue between the parties. By the terms of the contract he was bound to answer truly every question put to him that was relevant to that inquiry. His answer to every question pertinent to that point was material, and made so by the contract, and because it was material as evidence; so that every false statement on that subject, knowingly made, was intended to deceive and was fraudulent. And it does not detract from this conclusion to suppose that the purpose of Murphy in making these false statements was not to deceive and defraud the companies, as is stated in the bill of exceptions and certificate, but for the purpose of preventing an exposure of the false statement previously made to the commercial agency in order to enhance his credit. The meaning of that we take to be simply this, that his motive for repeating the false statements to the insurance companies was to protect his own reputation for veracity, and that he would not have made them but for that cause. But what is that but that he was induced to make statements known to be false, intended to deceive the insurance companies, lest they might discover, and others through them, the falsity of his previous statements; in other words, that he attempted, by means of a fraud upon the companies, to protect his reputation and credit? In any view, there was a fraud attempted upon the insurers; and it is not lessened because the motive that induced it was something in addition to the possible injury to them that it might work. The supposition proceeds upon the very ground of the false statement of a material matter, knowingly and willfully made, with the intent to deceive the defendants in error; and it is no palliation of the fraud that Murphy did not mean thereby to prejudice them, but merely to promote his own personal interest in a matter not involved in the contract with them. By that contract the companies were entitled to know from him all the circumstances of his purchase of the property insured, including the amount of the price paid and in what manner payment was made; and false statements, willfully made under oath, intended to conceal the truth on these points, constituted an attempted fraud by false swearing which was a breach of the conditions of the policy, and constituted a bar to the recovery of the insurance. Such we understand to be the precise effect of the rulings of the justice presiding at the trial of the case in the court below, in refusing the requests to instruct the jury as asked by the plaintiffs in error, and in giving the instructions contained in the charge excepted to, and finding no error in them, the judgment is affirmed.
108.US.567	No judgment or decree of a State court can be reviewed in this court unless the writ of error is filed in the court which rendered the judgment within two years from the entry of the judgment.	The final decree in this case was rendered on the thirteenth of July, 1878, and while the writ of error was allowed by the chief justice of the supreme court of Louisiana, and a bond approved and citation signed on the fifth of July, 1880, the writ of error was not actually issued until the fourteenth, and the copy was not lodged in the clerk's office until the sixteenth, of that month. No judgment or decree of a state court can be reviewed in this court unless the writ of error is brought within two years after the entry of the judgment. Rev. St. § 1008; Cummings v. Jones, 104 U. S. 419. In Brooks v. Norris, 11 How. 207, it was decided (Chief Justice TANEY, speaking for the court) that 'the writ of error is not brought, in the legal meaning of the term, until it is filed in the court which rendered the judgment. It is the filing of the writ that removes the record from the inferior to the appellate court, and the period of limitation prescribed by the act of congress must be calculated accordingly.' This case is cited with approval in Mussina v. Cavazos, 6 Wall. 360. It follows that the writ of error in this case was not brought within the time limited by law, and we have consequently no jurisdiction. For that reason the writ is dismissed.
108.US.228	1. A railroad company whose railroad was in the military possession of the United States during the civil war, and whose rolling stock was in the possession of the company within the confederate lines, and which earned or distributed dividends during the war by the use of its rolling stock, which dividends were paid in confederate notes, is held liable to pay an income tax on the dividends so earned and paid. 2. A railroad company which after the close of the civil war, with the consent of its stockholders, applied its surplus earnings to the restoration of its property and distributed to its stockolders bonds at a discount in lieu of money, with option, however, to take money, is held not liable to an income tax on the income so applied. 8. On the facts in this case the court finds no error in the instruction to the jury respecting the exclusion of evidence in regard to the understanding of the defendants below about an alleged compromise.	over taxes upon dividends and interest paid by the Memphis & Charleston Railroad Company between the first day of July, 1862, and the first day of December, 1865. The items which go to make up the amount of the judgment brought here for review are thus stated in the verdict of the jury. '(1) On dividend declared March 17, 1863, a tax of $1,625.45, being 3 per centum on $57,515.60, the value in legal currency, when paid, of $143,789, the whole amount of said dividend then paid in confederate money. (2) On interest coupons of said defendant falling due November 1, 1862, May 1, 1863, November 1, 1863, and May 1, 1864, a tax of $819.17, being 3 per cent. on $27,326.55, the value, when paid, in legal currency of $88,935, the portion of such coupons paid in confederate money; and the further tax of $2,274.45 on the remaining maining portion of said coupons falling due as aforesaid, being 3 per cent. on $75,815.83, such remaining portion of said coupons. (3) On interest coupons of said defendant falling due November 1, 1864, May 1, 1865, and November 1, 1865, a tax of $6,793.50, the same being 5 per centum on $135,870, the amount of said last-named coupons.' The questions presented by the bill of exceptions may be separated into three classes, as follows: (1) Those which relate to dividends and interest paid in confederate money and during the late civil war; (2) those which relate to the payments of interest after the close of the war; and, (3) those which relate to an alleged compromise between the United States and the railroad company under date of September 24, 1870. These will be considered in their order. 1. As to payments in confederate money. Upon this branch of the case the facts are these: At the beginning of the war the Memphis & Charleston Railroad Company was the owner of an equipped line of railroad extending from Memphis, in the state of Tennessee, through the states of Tennessee, Mississippi, and Alabama, to Stevenson, in the last-named state. It was divided into two divisions,—one known as the Eastern Division, extending from Stevenson westward to Bear Creek, on the line between Mississippi and Alabama, having its principal office at Huntsville, Alabama; and the other, known as the Western Division, extending from Bear Creek to Memphis, and having its principal office at Memphis. On the eleventh of April, 1862, the military forces of the United States took possession of the Eastern Division of the road, with all its rolling stock and equipment, and kept it until the close of the war. The Western Division was run by the officers of the company, under the control of the military superintendent of the confederate authorities, until the sixth of June, 1862, when it was taken possession of by the United States. Three days before the capture of Memphis by the military forces of the United States, the officers and rolling stock of the Western Division were moved south within the confederate lines, by command of the confederate military authorities, and were kept there until the end of the war. During this period the rolling stock was hired by the officers of the company to other railroad companies, and in this way a large amount in confederate treasury notes came into the hands of the officers of the company within the confederate lines. On the seventeenth of March, 1863, a resolution was passed within the confederate lines declaring a dividend of 4 per cent. on the capital stock, payable in confederate treasury notes on the fifteenth of April. Under this resolution payments were made to the amount stated in the verdict. The confederate money used to pay the coupons, as stated in the verdict, was all obtained from the hire of the rolling stock within the confederate lines. Upon this state of facts the court instructed the jury, in substance, that the United States were entitled to such a verdict as was rendered, and the question presented here is, in effect, whether that instruction was right. At the times when the dividend and interest now in question were paid, the entire railroad of the company and its two principal offices were within the lines of the military forces of the United States. The act of 1862, c. 119, which provided for the tax, was not passed until after the United States had established their military possession of the territory traversed by the railroad, and within which the principal offices were located. The corporation was, therefore, subject to the actual governmental control of the United States, and the laws of the United States were both operative upon and enforceable against it. No one will deny that the internal-revenue laws were intended to reach all persons and corporations within the dominion of the United States against whom they could for the time being be enforced by judicial process or otherwise. They were broad enough in their language to embrace all, and could be limited only in their operation by the power of the United States to enforce them. Clearly, then, if this dividend had been declared, and the dividend and interest paid at either of the principal offices of the company, or within the military lines of the United States, the taxes sued for would have been recoverable, notwithstanding the payments were made out of earnings derived from the use of property which had been taken inside the lines of the enemy. Thus the question now to be determined seems to be whether the company is exempt from the tax, because the resolution declaring the dividend was adopted within the confederate lines, and the payments, on account of which the taxes are demanded, were actually made there. In Ry. Co. v. Collector, 100 U. S. 595, followed at the present term in Eric Ry. Co. v. U. S.,* it was held that the internal-revenue tax on interest and dividends was an excise tax on the business of corporations, to be paid by the corporations out of their earnings, income, and profits. The payments made in this case were for dividends to stockholders and interest to bondholders out of the earnings, income, and profits of the corporation in its business. By means of the dividend the surplus earnings were distributed to the stockholders, and the debts of the company were discharged to the extent of the interest paid. In this way the earnings on the inside of the confederate lines were made available to the corporation, which was subject to the actual control of the United States, and bound for the payment of all internal-revenue taxes chargeable by law against it. To our minds it is a matter of no importance that the income came from property which was within confederate territory. The property, although within the confederate lines, belonged to the company, and the income derived from its use was actually paid out by the company in dividends to stockholders, and to discharge the corporate debts for interest. We think it would hardly be claimed that if a private individual, living in one of the loyal states during the war, derived an income, which he actually reduced to possession, or used in the payment of debts, from property in confederate territory, he would be exempt from the income tax imposed on him by the internal-revenue laws, because of the source from which his income was derived. But, if he would not be, it is difficult to see how this corporation is. In both cases the tax is in legal effect on the income of persons subject to the actual dominion and control of the United States. The tax is payable by the person because of his income, according to its amount, and without any reference to the way in which it was obtained. Under the instructions which were given the jury, the verdict was only for the taxes on the value of the confederate treasury notes in legal currency at the times the dividend and interest were paid. In this way the company has only been charged with an income estimated in lawful money. Without, therefore, considering in detail the particular instructions given to the jury or refused as stated in the bill of exceptions, it is sufficient to say that, upon the undisputed facts, it would have been proper for the court to have directed the verdict for the United States which was given in this branch of the case. 2. As to the payments of interest not made in confederate notes notes. All these payments were made after the close of the war, and there is no pretense that they were made out of earnings or income. The statement in the bill of exceptions is that they were paid 'either in cash or in second-mortgage bonds of the defendant company at a discount, at the option of the holder.' As to this the court instructed the jury as follows: 'The defendant's counsel insists that a portion of the interest on which a tax is claimed by the plaintiffs was funded in second-mortgage bonds of the company, and that such funding did not amount to a payment of such interest. If you find that any of the interest on the bonds of the defendant on which a tax is claimed in this suit was so funded, and that it was optional with the holders of such interest coupons to have the same paid in cash or funded in second-mortgage bonds at a discount, I charge you that if such holders of interest coupons took second-mortgage bonds in preference to the cash, that it did amount to a payment, and the plaintiffs would be entitled to recover the tax claimed on the amount so funded.' 'It is in proof that some of the coupons were not paid in cash, but were funded in second-mortgage bonds. It appears that the creditor had his option to take payment in cash, or take these new bonds at a certain agreed discount. It was, therefore, substantially a payment in cash, and a reinvestment of the amount in second-mortgage bonds. This can constitute no defense to the suit.' In this, we think, there was error. Although the tax is imposed on interest paid, the evident intention of congress was to tax only such payments as were either in fact or in legal effect made from the income. As was said in Railroad Co. v. Collector, supra, 'the tax * * * is essentially an excise on the business of the class of corporations mentioned in the statute. The section is a part of a system of taxing incomes, earnings, and profits adopted during the late war, and abandoned as soon after the war was ended as it could safely be done.' Under ordinary circumstances, it will be conclusively presumed that payments of interest were made from earnings, but when it appears that at the end of a civil war, during which interest had fallen in arrear, and earnings had been substantailly suspended, the company, in reorganizing its affairs for future business, either funded its past-due coupons in a new issue of bonds, or paid them from the proceeds of the sales of new bonds, no such presumption can arise, and if the facts are established they will constitute a complete defense to a suit for the recovery of a tax charged on such payments of interest. Any other construction would be in violation of the whole spirit and purpose of the statute. The bondholder would undoubtedly be taxable for his income derived in that way, but the payment would not be one upon which the company could be taxed. 3. As to the alleged compromise. Without recapitulating the facts connected with this part of the case, it is sufficient to say that in all the correspondence which preceded the payment of the money on the twenty-fourth of September, 1870, and in the receipt given for the money when paid, reference was had only to the payments of interest maturing from May, 1866, to July, 1869. It was not erroneous, therefore, for the court to exclude all testimony showing a different understanding on the part of the officers of the company, and to instruct the jury that the legal effect of the papers in evidence was to confine the compromise to the claims of the United States for taxes and penalties growing out of the interest maturing between the dates specified in the receipt of the collector. It nowhere appears that the officers of the United States had any knowledge of the payments, either of interest or dividends, which had been made at earlier dates. There are other assignments of error, but those already considered dispose of the entire case in a way to render the others immaterial on another trial. The judgment is reversed, and the cause remanded for such further proceedings, not inconsistent with this opinion, as justice may require.
107.US.529	1. The act of the General Assembly of Illinois approved Feb. 24, 1869, amendatory of an act entitled "An Act to incorporate the Illinois Southeastern Railway Company," approved Feb. 25, 1867, removed the limitation of 30,000 imposed upon the amount which, by the latter act, "any town in any county under township organization is authorized and empowered to donate to said company." 2. The court reaffirms the ruling in Harter v. Kernochan, 103 U. S. 562, that the duly signed and countersigned township bonds, payable to the company or bearer, which recite that they are duly issued in compliance with the vote of the legal voters of the township, cast at an election held by virtue of the above-mentioned acts of Feb. 25, 1867, and Feb. 24, 1869, are valid in the hands of a tona fide holder. 3. An irregularity in conducting the election will not defeat a recovery on the bonds, or on the coupons thereto attached, nor overcome the presumption that the plaintiff, in the usual course of business, became at their date the holder of them for value. 4. A decree in personlam, rendered by a court of the State of Illinois, declaring the bonds to be void, does not bind a non-resident holder of them who was not named as a party to the suit and did not appear therein, and who had no notice of the pendency thereof other than by a publication addressed to the "unknown holders and owners of bonds and coupons issued by the town of Pana." 5. Coupons after their maturity bear interest at the rate prescribed by the law of the place where they are payable. VOL. XVIL 34 Southern District of Illinois.	The people of the township of Pana voted almost unanimously for the donation to pay which the bonds in this case were issued. There is no pretense of any fraud in their issue. It is not disputed that the railroad company complied on its part with all the conditions upon which the bonds were to be issued to it, or that the township has received all it bargained for in consideration of the issue of the bonds. The bonds were registered in the office of the auditor of public accounts, where no bonds could be registered according to law unless the election authorizing the donation for which the bonds were issued had been held in pursuance of the statute, and the sworn certificate of the supervisor of the township to that effect had been filed with the auditor. The township has paid the interest on the bonds for three years. Under these circumstances, if the bonds and coupons are in the hands of bona fide holders for value, the defenses through which the township can escape liability will be reduced to narrow limits. The charter of the Illinois Southeastern Railway Company declared that any town in any county under township organization might donate to said company any amount not to exceed $30,000. The question is raised by the first assignment of error whether this limit was removed by the amendatory act of February 24, 1869. We think it was. Section 10 of the act last named is an entire revision of sections 9 and 10 of the original charter of the company. The original charter authorized townships only to make donations to the railroad company, and it required that the railroad, or some part of it or its branches, should be completed before the donation was paid. It did not authorize the issue of bonds to pay the donations, but required the assessment and collection of a tax upon all the taxable property of the town for that purpose. The amendatory act authorized noy only townships, but also villages, cities, and counties along the route of the railroad to make donations to the company. It prescribed an entirely different condition precedent to the making of a donation, and required the issue of bonds to pay the donation when made, and it did not require the completion of the railroad, or any part of it, before the bonds were issued. It did not limit the amount which might be donated to $30,000, but declared that if a majority of the votes cast at the election provided for by the act should be in favor of donation, the corporate authorities of the village, city, county, or township, as the case might be, should donate to the company the amount so voted at said election, and issue bonds in payment thereof. It thus appears that the section 10 of the amendatory act covered the entire subject embraced by sections 9 and 10 of the original act. It related to the same railroad company; it prescribed different methods of procedure in reference to the same subject, and embraced entirely new provisions, thus plainly showing that it was intended as a substitute, pro tanto, for the original act. Section 10 of the amendatory act, therefore, operated as a repeal by implication of sections 9 and 10 of the original act, and removed the restriction limiting to $30,000 the amount which could be donated by a township to the railroad company. U. S. v. Tynen, 11 Wall. 88; Henderson's Tobacco, Id. 652; Murdock v. Memphis, 20 Wall. 590; King v. Cornell, [1 SUP. CT. REP. 312,] decided at the present term. The next question raised by the assignments of error relates to the power of the township of Pana, under the circumstances of this case, to issue the bonds in question. This court has decided in the case of Harter v. Kernochan, 103 U. S. 562, that bonds issued by the township of Harter, dated April 1, 1880, signed by the supervisor and countersigned by the clerk of the township, reciting that they were issued in pursuance of the acts of February 25, 1867, and February 24, 1869, which are the acts relied on in this case, and in pursuance of an election of the legal voters of the township held on November 10, 1868, were valid obligations of the township. The power of the township of Pana, under the same acts, to issue bonds to pay its donation to the same railroad company, is, therefore, settled beyond dispute, unless what the plaintiff in error insists was a defect in the method of conducting the election by which the donation was voted, is fatal to the authority of the officers of the township to issue the bonds. This defect was that the election was presided over and the returns made, not by the supervisor, assessor, and collector of the township, ex officio judges of elections, but by a moderator chosen by the electors present. It is insisted by the plaintiff in error that, as the constitution of Illinois, adopted July 2, 1870, by its second additional section, cut off the power of any township or other municipality to subscribe to the capital stock of, or make a donation to, any railroad company, except when such subscription or donation had been authorized under existing laws, by a vote of the people of the municipality prior to the adoption of the constitution, and as, by reason of the defect just mentioned, there was no legal election, it follows that there was no authority in the officers of the township of Pana to make the donation or issue the bonds in question in this case, and that the bonds are not binding on the township. We cannot assent to this conclusion. It is clear that this case in nowise differs from other cases where the holding of an election and a vote of the people in favor of an issue of bonds is made by law a condition precedent upon which the authority to issue bonds rests. The bonds in question in this case recite on their face that they were issued by the township, in compliance with the vote of the legal voters thereof, at an election held on April 30, 1870, under and by virtue of the authority conferred by acts of the general assembly of the state of Illinois, specifying the acts of February 26, 1867, and February 24, 1869, above mentioned. This court has again and again decided that if a municipal body has lawful power to issue bonds or other negotiable securities, dependent only upon the adoption of certain preliminary proceedings, such as a popular election of the constituent body, the holder in good faith has the right to assume that such preliminary proceedings have taken place, if the fact be certified on the face of the bonds by the authorities whose primary duty it. Lynde v. The County, 16 Wall. 6; Town of Coloma v. Eaves, 92 U. S. 484; Com'rs Johnson Co. v. January, 94 U. S. 202; Douglas Co. v. Bolles, Id. 104; Co. of Warren v. Marcy, 97 U. S. 96. The authority to issue the bonds in question in this case, resting upon the fact that an election was held in pursuance of law before a certain date, namely, the date when the constitution of 1870 was adopted, and the bonds reciting on their face the fact that the election was so held before the date mentioned, the circumstance that the election was irregularly conducted can be of no avail as a defense to the bonds in a suit brought by a bona fide holder. Our attention has been called to the decision of the supreme court of Illinois in the case heretofore mentioned and reported as Lippincott v. Town of Pana, in 92 Ill. 24, which it was held that the election relied on in this case as the authority for the issue of the bonds was absolutely void, and the issue of the bonds was, therefore, without authority. Our attention is also called to the cases of People v. Santa Anna, 67 Ill. 57, and People v. Town of Laenna, Id. 65, where similar elections under a like statute were held void. These last two cases were decided before the bonds in this case were issued. They were, however, suits brought to restrain the issue of bonds by the township officers, on account of the irregularities in the election. The rights of bona fide holders could not, therefore, arise, and were not passed on in those cases. But in the case first mentioned the bonds had been issued, and were presumptively in the hands of bona fide holders. Nevertheless, the supreme court of Illinois held the bonds to be void in whosoever hands they might be. It is insisted that this court is bound to follow this decision of the supreme court of Illinois and hold the bonds in question void. We do not so understand our duty. Where the construction of a state constitution or law has become settled by the decision of the state courts, the courts of the United States will, as a general rule, accept it as evidence of what the local law is. Thus, we may be required to yield against our own judgment to the proposition that, under the charter of the railway company, the election in this case, which was held under the supervision of a moderator chosen by the electors present, was irregular and therefore void. But we are not bound to accept the inference drawn by the supreme court of Illinois, that, in consequence of such irregularity in the election, the bonds issued in pursuance of it by the officers of the township, which recite on their face that the election was held in accordance with the statute, are void in the hands of bona fide holders. This latter proposition is one which falls among the general principles and doctrines of commercial jurisprudence, upon which it is our duty to form an independent judgment, and in respect of which we are under no obligation to fllow implicitly the conclusions of any other court, however learned or able it may be. Swift v. Tyson, 16 Pet. 1; Russell v. Southard, 12 How. 139; Watson v. Tarpley, 18 How. 517; Butz v. Muscatine, 8 Wall. 575; Boyce v. Tabb, 18 Wall. 546; Oates v. Nat. Bank, 100 U. S. 239; Railroad Co. v. Nat. Bank, 102 U. S. 14. See, also, Burgess v. Seligman, [ante, 10,] decided at the present term, where the question, how far the courts of the United States are bound by the decisions of the state courts, is carefully re-examined, and the rule on the subject stated with precision. We cannot follow the decision of the supreme court of Illinois in Lippincott v. Town of Pana, ubi supra, without overruling a uniform current of the decisions of this court, beginning with the case of Com'rs Knox Co. v. Aspinwall, in 21 How. 539, and continuing down to the present time. The rights of the bona fide holder of negotiable municipal bonds, as we have stated them in this opinion, are too firmly settled by the decisions of this court to be shaken. Our conclusion is, therefore, that the bonds in question in this case are valid in the hands of a bona fide holder, notwithstanding the irregularity in the conduct of the election by which they were claimed to be authorized. The next question presented by the assignments of error is, does the irregularity in the conduct of the election throw on the plaintiffs the burden of proving that they are holders for value? It is a general rule that when the holder of a negotiable instrument, regular on its face and payable to bearer, produces it in a suit to recover its contents, and the same has been received in evidence, there is a prima facie presumption that he became the holder of it, for value at its date, in the usual course of business. Murray v. Lardner, 2 Wall. 110; Bank of Pittsburgh v. Neal, 22 How. 96; Collins v. Gilbert, 94 U. S. 753; Brown v. Spofford, 95 U. S. 474. And municipal bonds, payable to bearer, are subject to the same rules as other negotiable paper. Cromwell v. Sac Co. 96 U. S. 51. But the plaintiff in error insists that this case falls within an exception to that rule, and cites to sustain his position the cases of Smith v. Sac Co. 11 Wall, 139, and Stewart v. Lansing, 104 U. S. 505. The exception relied on by plaintiff in error is well settled, and is this: If, in a suit brought by the indorsee or transferee of a negotiable instrument, the maker or acceptor, or any party who is primarily bound by the original consideration, proves that there was fraud or illegality in the inception of the instrument, the burden of proof is thrown on the plaintiff to show that he is a holder for value. Smith v. Sac Co. and Stewart v. Lansing, ubi supra; Com'rs v. Clark, 94 U. S. 285; Collins v. Gilbert, Id. 753; Fitch v. Jones, 5 El. & Bl. 238; Smith v. Brane, 16 Q. B. 244; Hall v. Featherstone, 3 Hurl. & N. 284; Bailey v. Bidwell, 13 Mees. & W. 73; Vathir v. Zane, 6 Grat. 246; Hutchinson v. Boggs, 28 Pa. St. 294; Perrin v. Noyes, 39 Me. 384; Cottle v. Cleaves, 70 Me. 256; Sistermans v. Field, 9 Gray, 331; Woodhull v. Holmes, 10 Johns. 231; Thompson v. Armstrong, 5 Ala. 383; Harbison v. Bank of Indiana, 28 Ind. 133; Fuller v. Hutchings, 10 Cal. 526; Redington v. Wood, 45 Cal. 406; Conley v. Winsor, 41 Mich. 253; Sloan v. Union Banking Co. 67 Pa. St. 470; Holme v. Karsper, 5 Binn. 469; Vallett v. Parker, 6 Wend. 615; Munroe v. Cooper, 5 Pick. 412; 1 Daniel, Neg. Inst. (3d Ed.) § 815. In most of the cases above cited the defense relied on was fraud in the inception of the instrument. Thus, in the case of Smith v. Sac Co. 11 Wall. 139, the report shows that the bonds were issued to a contractor to pay for the building of a court-house; that the county judge who executed and delivered the bonds was bribed to do so; and that the court-house never was built. In the case of Stewart v. Lansing, 104 U.S. 505, the county judge, assuming to act under authority of a law of the state, rendered a judgment appointing commissioners to execute bonds of the town of Lansing. This judgment was carried by certiorari to the supreme court and there reversed. The county judge, the commissioners, and the railroad company to which the bonds were ordered to be issued, all has notice of the writ of certiorari and of the subsequent proceedings under it. Before the judgment of reversal, however, the commissioners, notwithstanding the pendency of the writ of certiorari, issued the bonds in suit in the case, taking from the railroad company an obligation for their personal indemnity. This court held that, as between the railroad company and the town, the judgment of reversal was equivalent to a refusal by the county judge to make the original order, and invalidated the bonds. There is no pretense of any fraud in the inception of the bonds in question in this case. It is not denied that they were issued in good faith and for a valuable consideration. The question, then, is, was the irregularity in the conduct of the election such an illegality as throws on the plaintiff the burden to show that he paid value for the coupons? We are clearly of opinion that it is not. It will appear from an examination of the cases above cited, in which the defense was illegality in the inception of the instrument, that the illegality which shifts the burden of proof on the holder to prove that he paid value, must be something which relates to the consideration of the paper sued on. It must appear that the consideration arose out of a transaction contrary to law, or against public policy. Thus, in the case of Sistermans v. Field, 9 Gray, 333, the illegality which the court held threw the burden on the plaintiff of proving that he gave value for the notes sued on, was the fact alleged by the defendant that they were given in payment for intoxicating liquors sold by the payees of the notes to the defendant in violation of law. Precisely the same illegality was held in the case of Cottle v. Cleaves, 70 Me. 256, to throw upon the plaintiff, who was indorsee, the burden of showing that he paid value for the note. *So in Fuller v. Hutchings, 10 Cal. 526, the paper sued on was given for losses at a public banking game called 'faro.' Gaming was prohibited by statute. It was declared by the laws of California to be a felony in the keeper of the game and a misdemeanor in the player. In this case the court held that, the illegal consideration being admitted, it devolved upon the plaintiff to show that he took the paper without notice and for value. In the case of Bailey v. Bidwell, 13 Mees. & W. 73, it was alleged, as a matter of defense, that the consideration for the note sued on was an agreement that the payee should not oppose a petition in bankruptcy filed by the defendant, the maker of the note, and that the note was indorsed to the plaintiff without value. The court, by Baron PARKE, held the rule to be that if the note was proven to have been obtained by fraud, or affected by illegality, that afforded a presumption that the person who had been guilty of the illegality would dispose of it, and place it in the hands of another person to sue on it, and that such proof casts upon the plaintiff the burden of showing that he was a bona fide indorsee for value. In Fitch v. Jones, 5 El. & Bl. 238, the note which was sued on by an indorsee was given for a wager on the hop duty. This, the court said, was not within the statute of Anne or any other statutes which prohibit wagers. There was no penalty imposed for such a wager; and, therefore, as between the maker and payee, there was no illegality or violation of law, but it was a mere nudum pactum. And the court held that the defendant was bound to prove his plea by showing that the plaintiff did not give value for the note. The authorities illustrate the rule and show that it does not apply to this case. There was no illegality whatever in the consideration of the bonds in question in this suit. The mere irregularity in the conduct of the election was not such an illegality as is contemplated by the rule, and does not deprive the holder of the coupons of the presumption that he acquired them for value. The next contention of the plaintiff in error is that the decree of the circuit court of Christian county, Illinois, by which the bonds in question were declared void, is binding upon the plaintiffs in this case, and is a bar to the action upon the coupons sued on. The plaintiffs in this case are citizens of the state of Maine. It is sought to bind them by a decree rendered in a proceeding purely in personam in a case in which they were not named as parties, when there was no personal service upon or appearance by them, and when the only pretense of notice to them of the pendency of the suit was a publication addressed to the 'unknown holders and owners of bonds issued by town of Pana.' It is contended that, under the statutes of Illinois, parties may be thus brought in and a valid personal decree rendered against them. Whatever may be the effect of such a decree upon citizens of the state of Illinois, this court has held that, as to non-residents, it is absolutely Cooper v. Reynolds, 10 Wall. 308; Pennoyer v. Neff, 95 U. S. 714; Brooklyn v. Ins. Co. 99 U. S. 370; Empire v. Darlington, 101 U. S. 92. In a case decided at the present term it was declared by this court, speaking by Mr. Justice FIELD, that 'the courts of the United States only regard judgments of the state courts establishing personal demands as having validity or importing verity when they have been rendered upon personal citation of the party, or upon his voluntary appearance.' St. Clair v. Cox, 106 U. S. 350; [S. C. 1 SUP. CT. REP. 354.] These authorities settle the rule which is conclusive of this question. It would be a reproach to jurisprudence if the rights of citizens of Maine to recover the contents of a chose in action, held and owned by them, could be cut off by a suit in Illinois to which they were not made parties by name, and in which there was no presonal service or appearance. It is insisted by counsel for plaintiff in error that the decree of the appellate court recites the fact that the persons made defendant under the designation of 'the unknown holders and owners of bonds and coupons of the town of Pana,' which includes the defendants in error, appeared in that court, and that they are, therefore, concluded by the decree in the case. There is no pretense that there was any appearance in fact of the parties referred to. It is sought to conclude them by a loose expression in the decree, which, in our opinion, was clearly not intended to recite their appearance, and is not fairly open to such a construction. Lastly, it is assigned for error that, in computing the amount due upon the coupons described in the declaration, the court allowed 7 per cent. interest, the legal rate in New York, where the coupons were payable, instead of 6 per cent., the legal rate in Illinois, where they were made. There was no error in this. The coupons, after their maturity, bore interest at the rate fixed by the law of the place where they were payable. Gelpcke v. Dubuque, 1 Wall. 175. What we have said covers all the assignments of error. We find no error in the record. The judgment of the circuit court must, therefore, be affirmed.
109.US.174	1. The District Court of the U. S. for the Eastern District of Pennsylvania has jurisdiction over the claim of a pilot appointed under the laws of Delaware for fees when the vessel is seized within the jurisdiction of the court, and properly brought before it. 2. Where the evident purpose of an application for a writ of prohibition is the correction of a supposed error in a judgment on the merits, the court will nqt grant the writ.	We are unable to distinguish this case in principle from Ex parte Hagar, 104 U. S. 520, where it was held, on the authority of Ex parte Gordon, Id. 515, that as the admiralty court had jurisdiction of the vessel sued, and the subject-matter of the suit, it could not be restrained by a writ of prohibition from deciding all questions properly arising in that suit. This, like that, is a suit for pilotage fees, and the question is whether a statute of Delaware, under which the fees are claimed, is valid. If valid in Delaware it is in Pennsylvania, and the court sitting in Pennsylvania is as competent to decide that question in a suit of which it has jurisdiction as a court in Delaware. The jurisdiction of the court in Pennsylvania is no more dependent on the validity of the law than was that of the court in Delaware. The subject-matter of the suit is a claim of a Delaware pilot for his pilotage fees under a Delaware statute, and the sole question in the case is whether the fees are recoverable. The vessel when seized was confessedly within the jurisdiction of the court in Pennsylvania, and she was properly brought into court to answer the claim which was made upon her. About that there is no dispute, as there was at the last term in Re Devoe Manuf'g Co. 108 U. S. , [S. C. 2 SUP. CT. REP. 894,] where the question was as to the right of the court in New Jersey to send its process to the place where the seizure was made. There, the question was as to the jurisdiction of the court over a particular place; here, as to the liability of a vessel confessedly seized within the territorial jurisdiction of the court upon a claim subject to judicial determination in an admiralty proceeding. The evident purpose of this application is to correct a supposed error in a judgment of an admiralty court on the merits of an action. That cannot be done by prohibition. The remedy, if any, is by appeal. If an appeal will not lie, then the parties are concluded by what has been done. Congress alone has the power to determine whether the judgment of a court of the United States, of competent jurisdiction, shall be reviewed or not. If it fails to provide for such a review the judgment stands as the judgment of the court of last resort, and settles finally the rights of the parties which are involved. The petition is dismissed.
107.US.102	1. In the absence of a special contract, a railroad company, by receiving cattle for transportation over its own line and other lines therewith connected, is only bound to carry the cattle over its own line, and deliver them safely to the next connecting carrier. 2. A contract whereby the liability of the company is sought to be extended beyond such carriage and delivery will not be inferred from loose and doubtful expressions, but must be established by clear and satisfactory evidence. Taking a through fare on the receipt of the cattle does not establish such liability. 3. The receipt of the company, post, p. 103, does not of itself constitute such contract. The circumstances under which it was given should have been submitted to the jury, to determine whether in fact a through contract was made. 4. In passing upon the rights of the parties, this court will not be controlled by the judicial decisions of the State where the contract of carriage was made.	The principal question presented by the instruction requested by the defendant has been elaborately considered and adjudged by this court. It is only necessary, therefore, to state the conclusion reached. A railroad company is a carrier of goods for the public, and as such is bound to carry safely whatever goods are intrusted to it for ransportation, within the course of its business, to the end of its route, and there deposit them in a suitable place for their owners or consignees. If the road of the company connects with other roads, and goods are received for transportation beyond the termination of its own line, there is superadded to its duty as a common carrier that of a forwarder by the connecting line; that is, to deliver safely the goods to such line—the next carrier on the route beyond. This forwarding duty arises from the obligation implied in taking the goods for the point beyond its own line. The common law imposes no greater duty than this. If more is expected from the company receiving the shipment there must be a special agreement for it. This is the doctrine of this court, although a different rule of liability is adopted in England and in some of the states. As was said in Railroad Co. v. Manufacturing Co.: 'It is unfortunate for the interests of commerce that there is any diversity of opinion on such a subject, especially in this country, but the rule that holds the carrier only liable to the extent of his own route, and for the safe storage and delivery to the next carrier, is in itself so just and reasonable that we do not hesitate to give it our sanction.' 16 Wall. 324. This doctrine was approved in the subsequent case of Pratt v. Railroad Co. 22 Wall. 123, although the contract there was to carry through the whole route. Such a contract may of course be made with any one of different connecting lines. There is no objection in law to a contract of the kind, with its attendant liabilities. See, also, Ins. Co. v. Railroad Co. 104 U. S. 157. The general doctrine, then, as to transportation by connecting lines, approved by this court, and also by a majority of the state courts, amounts to this: That each road, confining itself to its common-law liability, is only bound, in the absence of a special contract, to safely carry over its own route and safely to deliver to the next connecting carrier, but that any one of the companies may agree that over the whole route its liability shall extend. In the absence of a special agreement to that effect, such liability will not attach, and the agreement will not be inferred from doubtful expressions or loose language, but only from clear and satisfactory evidence. Although a railroad company is not a common carrier of live animals in the same sense that it is a carrier of goods, its responsibilities being in many respects different, yet when it undertakes generally to carry such freight it assumes, under similar conditions, the same obligations, so far as the route is concerned over which the freight is to be carried. In the present case the court below held that by its receipt, construed in the light of the circumstances under which it was given, the Michigan Central Railroad Company assumed the responsibility of transporting the cattle over the whole route from Chicago to Philadelphia. It did not submit the receipt with evidence of the attendant circumstances to the jury to determine whether such a through contract was made. It ruled that the receipt itself constituted such a contract. In this respect it erred. The receipt does not, on its face, import any bargain to carry the freight through. It does not say that the freight is to be transported to Philadelphia, or that it was received for transportation there. It only says that it is consigned to the order of Paris Myrick, and that the Blakers at Philadelphia are to be notified. And, after the description of the property, it adds: 'Marked and described as above (contents and value otherwise unknown) for transportation by the Michigan Central Railroad Company to the warehouse at _____,' leaving the place blank. This blank may have been intended for the insertion of some place on the road of the company, or at its termination. It cannot be assumed by the court, in the absence of evidence on the point, that it was intended for the place of the final destination of the cattle. On the margin of the receipt is the following: 'NOTICE.—See rules of transportation on the back hereof.' And among the rules is one declaring that goods consigned to any place off the company's line, or beyond it, would be sent forward by a carrier or freightman, when there are such, in the usual manner, the company acting for that purpose as the agent of the consignor or consignee, and not as carrier; and that the company would not be responsible for any loss, damage, or injury to the property after the same shall have been sent from its warehouse or station. Though this rule, brought to the knowledge of this shipper, might not limit the liability imposed by a specific through contract, yet it would tend to rebut any inference of such a contract from the receipt of goods marked for a place beyond the road of the company. The doctrine invoked by the plaintiff's counsel against the limitation by contract of the common-law responsibility of carriers, has no application. There is, as already stated, no common-law responsibility devolving upon any carrier to transport goods over other than its own lines, and the laws of Illinois restricting the right to limit such responsibility do not, therefore, touch the case. Nor was the common-law liability of the defendant corporation enlarged by the fact that a notice of the charges for through transportation was posted in the defendant's station-house at Chicago. Such notices are usually found in stations on lines which connect with other lines, and they furnish important information to shippers, who naturally desire to know what the charges are for through freight, as well as for those over a single line. It would be unfortunate if this information could not be given by a public notice in the station of a company without subjecting that company, if freight is taken by it, to responsibility for the manner in which it is carried on intermediate and connecting lines to the end of the route. Nor was the liability of the company affected by the fact that the notice on the margin of the receipt stated that the ticket given might be 'exchanged for a through bill of lading.' It would seem to indicate that the receipt was not deemed of itself to constitute a through contract. The through bill of lading may also have contained a limitation as to the extent of the route over which the company would undertake to carry the cattle. Besides, if weight is to be given to this notice as characterizing the contract made, it must be taken with the rule to which it also calls attention, that the company assumed responsibility only for transportation over its own line. It follows from the views expressed that the court below erred in its charge that the ticket or bill of lading was a through contract, whereby the defendant company agreed to transfer the cattle to Philadelphia, and safely deliver them there to the order of Myrick. Our attention has been called to some decisions of the supreme court of Illinois which would seem to hold that a railroad company which receives goods to carry, marked for a particular destination, though beyond its own line, is prima facie bound to carry them to that place and deliver them there; and that an agreement to that effect is implied by the reception of goods thus marked. Illinois Cent. R. Co. v. Frankenberg, 54 Ill. 88; Same v. Johnson, 34 Ill. 389. Assuming that such is the purport of the decisions they are not binding upon us. What constitutes a contract of carriage is not a question of local law upon which the decision of a state court must control. It is a matter of general law, upon which this court will exercise its own judgment. Chicago City v. Robbins, 2 Black, 429; Railroad Co. v. Nat. Bank, 102 U. S. 14; and Hough v. Ry. Co. 100 U. S. 213. If the doctrine of the supreme court of Illinois, as to what constitutes contract of carriage over connecting lines of roads, is sound, it ought to govern, not only in Illinois, but in other states; and yet the tribunals of other states, and a majority of them, hold the reverse of the Illinois court, and coincide with the views of this court. Such is the case in Massachusetts. Nutting v. Railroad Co. 1 Gray, 502; Burroughs v. Railroad Co. 100 Mass. 26. If we are to follow on this subject the ruling of the state courts, we should be obliged to give a different interpretation to the same act—the reception of goods marked for a place beyond the road of the company—in different states, holding it to imply one thing in Illinois and another in Massachusetts. The judgment must be reversed, and the case remanded for a new trial; and it is so ordered.
107.US.69	1. When persons summoned as garnishees in a libel in admiralty in personam are adjudged by the court to have a fund of the principal defendant in their hands and to pay it into court, and the libellant afterwards obtains a final decree against him with an .award of execution against the fund in their hands, the first order is interlocutory, and they can appeal from the last decree only. 2. A final decree of acquittal and restitution to the only claimant in a prize cause determines nothing as to the title in the property, beyond the question of prize or no prize; and another person, who actually conducts the defence in the prize cause in behalf and by consent of the claimant, without disclosing his own title under a previous bill of sale from the claimant, is not estopped to contest the claimant's title u a subsequent suit brought by creditors attaching the property or its proceeds as belonging to the claimant.	This is a libel in admiralty, filed in the district court for the southern district of New York by John N. Cushing and others against John Laird, Jr., to recover damages for the destruction of the libelants' vessel, the Sonora, by the Alabama. The defendant was not found and never appeared in the cause, and his credits and effects were attached in the hands of Foster & Thomson, garnishees. The garnishees answered that they had in their hands a fund amounting to $31,441.62, known as the proceeds of the steamer Wren, which was the property of Charles K. Prioleau, and not of Laird. Upon the trial of the issue raised by this answer, the district court, in April, 1873, adjudged that the fund belonged to Laird, and ordered the garnishees to pay it into court. See 6 Ben. 408. From that decree the garnishees appealed to the circuit court. The district court afterwards, in September, 1873, entered a decree in favor of the libelants against Laird for the sum of $143,298.70, and costs, 'and that the libelants have execution thereon, to satisfy this decree, against the property of the said respondent, and especially against his property, credits, and effects in the hands of Foster & Thomson, garnishees.' From this decree also the garnishees appealed to the circuit court. The circuit court dismissed the first appeal, and retained the cause for hearing on the second appeal only; and, upon consideration, entered a decree by which it was adjudged that the fund in the hands of the garnishees was not the property of Laird, and could not be subjected to the payment of the decree against him, the attachments against the garnishees were discharged, and both decrees of the district court, so far as affected them and the fund in their hands, were reversed, with costs. See 15 Blatchf. C. C. 219. The findings of fact by the circuit court are printed at length in 15 Blatchf. C. C. 220-236, and, so far as they are material to be stated, are as follows: The steamer Wren was built at Birkenhead, England, in 1864, by Laird Bros., and was registered on the twenty-fourth of December, 1864, at Liverpool, in accordance with the laws of Great Britain, in the name of John Laird, Jr., as owner; a certificate of the registry was issued in due form; the vessel sailed from Liverpool, having the certificate on board as part of her ship's papers, and it did not appear that she ever again entered a British port. On the third of January, 1865, after she had left Liverpool, Laird executed to Charles K. Prioleau, of Liverpool, a member of the firm of Fraser, Trenholm & Co., for the consideration of £15,450, a bill of sale of the vessel, which, on the first of May, 1865, was duly entered at the custom-house in Liverpool, and the vessel registered in the name of Prioleau as owner. On the thirteenth of June, 1865, on the high seas, on a voyage from Havana to Liverpool, by the way of Halifax, Nova Scotia, some of the crew took forcible possession of the vessel, overcame her officers, ran her into Key West, and there delivered her to the naval authorities of the United States. On the sixteenth of June, 1865, the attorney of the United States for the southern district of Florida filed in the district court for that district an information against the vessel as prize of war. She was taken into the custody of the marshal, and a monition issued to all persons interested to appear on the twenty-seventh of June and show cause against a decree of condemnation. On the twenty-sixth of June, Edward C. Stiles, master of the vessel, appeared in court and filed a claim, stating that he was the master, and, as such, the lawful bailee of the vessel, and claimed the same for the owner thereof; and that Laird, a British subject, residing the England, was the true and bona fide ower of the vessel, and that no other person was the owner thereof, as appeared by her register in the possession of the court, and as he was informed and believed; denying that she was a prize of war, and praying restitution and damages. The only certificate of registry found on board was that granted on the twenty-fourth of December, 1864, upon which were noted, at the British consulate in Havana, changes of masters on the twenty-fourth of March and the tenth of June, 1865, and at the foot of which was the following: 'Note. A certificate of the registry granted under the merchant shipping act, 1854, is not a document of title. It does not necessarily contain notice of all changes of ownership, and in no case does it contain an official record of any mortgage affecting the ship.' On the seventeenth, nineteenth, and twentieth of June, 1865, the depositions of the master and other officers of the vessel were taken in preparatorio, and on the twenty-seventh of June the court proceeded to hear the case upon the allegations and pleadings, the depositions taken in preparatorio, and the papers, letters, and writings found on board the vessel. On the twenty-ninth of June the court, of its own motion, directed the prize commissioner to take immediately the testimony of the officers, and of any other witnesses who might be produced by the claimants from persons on board the vessel, upon specified interrogatories; of two persons named, and any others on board produced by the captors, upon some of the same interrogatories; and of any witnesses, produced either by the captors or the claimants from persons not on board, upon certain other interrogatories; and allowed two days to the parties to produce witnesses. Under this order testimony was taken; and on the third of July the court resumed the hearing upon the allegations and pleadings, the depositions taken in preparatorio, the papers found on board, and the depositions taken under the order allowing further proof. The court, on the eighth of July, announced its opinion, condemning the vessel, but, on account of exceptions taken to some rulings, delayed making a decree in form until the fifteenth of August, when it was duly entered, reciting that a claim had been interposed by the master in behalf of Laird, that the case had been heard as aforesaid, and that it appeared to the court that the Wren was, at the time of capture, the property of enemies of the United States; and adjudging her to be condemned and forfeited to the United States as lawful prize of war, and to be sold by the marshal, and the proceeds to be deposited with the assistant treasurer of the United States, subject to the order of the court. From that decree the claimant, on the same day, appealed to this court. The vessel was afterwards sold, and the proceeds of the sale deposited with the assistant treasurer. Prioleau still resided in England, and it did not appear that he had any actual knowledge of the proceedings for the condemnation until after the entry of the decree. He afterwards retained Foster & Thomson, the garnishees in this case, attorneys and counselors at law in the city of New York, to do whatever might be necessary for the protection of his interests; and they procured a copy of the record of the district court and had the appeal docketed in this court, employed additional counsel, who argued the case here on the record sent up. No additional testimony was taken, and no change in the pleadings made or applied for. Upon the argument in this court, the counsel for the United States insisted that it appeared from the evidence that the vessel, at the time of the capture, was the public property of rebel enemies, and, in support of this position, referred to the testimony of witnesses who swore that Fraser, Trenholm & Co. were her owners. The counsel for the appellant insisted that there was not a particle of evidence that she was ever enemies' property, but that the evidence was conclusive that she was at all times the property of Laird, a British neutral. of the district court, and remanded the cause, with directions to restore the vessel to the claimant, without costs. Mr. Justice NELSON, in delivering the opinion, said that the only question in the case was whether the vessel was the property of enemies of the United States; and, in discussing this question, observed that upon the proofs that the claimant built the vessel and put the master in command in this, her first voyage, the presumption would seem to be very strong, if not irresistible, (nothing else in the case,) that he continued the owner for the short period of six months that elapsed after she was built and before the seizure took place; that in addition to this she was in command of a master claiming to represent Laird as owner; that these acts, in connection with the registry, afforded strong evidence that the title of the vessel was in the claimant; and that, although it was not unnatural to suspect, from the surrounding facts and circumstances, that the so-called confederate states or their agents had some interest in or connection with her, there was no sufficient legal proof that they owned the vessel. After that decree of this court, Foster & Thomson made and sent to Prioleau a draft of a power of attorney to be executed by Laird and by Stiles and in due time received from Prioleau the power so executed, authorizing Foster & Thompson to receive from the United States, or from any officer or depo itary thereof, restitution of the proceeds of the sale of the Wren; and obtailed a mandate from this court, and sent it, together with a copy of their authority, to the attorney of the United States for the southern district of Florida, requesting him to see the appropriate decree entered and a draft upon the assistant treasurer in New York for the payment of the money to their order transmitted to them, and also employed F. A. Dockray, an attorney in Florida, to aid them in procuring the money from the registry of the court; and did not, in any of their letters to the district attorney or to Dockray, mention that any other person than Laird was or pretended to be the owner of the fund in court. Some of the libelants in this case having filed a libel in that court to recover for the wrong complained of in the present suit, with a prayer for an attachment of the fund in the registry, and an attachment having been made accordingly, an arrangement was made between Foster & Thomson and J. L. Ward, proctor for the libelants, with a view of transferring the litigation to New York for the convenience of the parties, and of having the fund transmitted to Foster & Thomson, in New York, as authorized attorneys in fact of Laird, to be held by them long enough to enable process to be served upon them in behalf of the libelants. Pursuant to that arrangement, Dockray, acting under his employment by Foster & Thomson, appeared in behalf of Laird in the libel filed against him in Florida, and claimed the proceeds of the Wren in the registry of that court, and exhibited the mandate of this court; and upon his motion, with Ward's consent, the attachment was dismissed, and a decree entered, by which, after reciting the decree of this court reversing the decree of condemnation and ordering the property to be restored to the claimant, it was ordered, adjudged, and decreed that the proceeds of the Wren, after deducting costs, charges, and expenses, and amounting to $31,441.62, on deposit with the assistant treasurer of the United States at New York, be paid to said John Laird, claimant, and, it appearing that Foster & Thomson were his lawfully-authorized attorneys, that said proceeds be paid to them. That sum was accordingly transmitted to Foster & Thomson, and is the matter in controversy in this case. In the course of the negotiations which preceded that arrangement, Ward was in no manner given to understand that there was any ownership or claim of ownership of the fund, other than such as appeared on the face of the record and the power of attorney filed with the mandate, and in point of fact he did not know or have any reason to believe that Foster & Thomson were acting in any other capacity than as attorneys for Laird and Stiles, representing their several interests, as disclosed by the record in this court. Foster & Thomson never had any personal communication with Laird, nor received any instructions from him, but were actually employed by Prioleau, and communicated with Laird through him only. The libelants requested the circuit court to make the following conclusions of law: '(1) The prize court in Florida condemned the Wren as enemy property. (2) The supreme court in reversing that decree decided that the Wren was not enemy property, but was property of John Laird, Jr. (3) the garnishees, acting for Prioleau, procured the supreme court to make that decision. (4) Prioleau is chargeable with notice of all the proceedings in the prize court and in the supreme court. (5) The proceeds of the Wren in the prize court were subject to the attachment served upon them in the district court of Florida at the time when the consent of the libelants' proctor to the dissolution of such attachment was obtained. (6) The decision of the supreme court binds the garnishees herein and Prioleau, and is conclusive against them, and cannot be re-examined in the suit. (7) Prioleau is estopped from denying in this suit that John Laird, Jr., was the owner of the Wren, and of the proceeds thereof when the same were attached herein. (8) The garnishees are estopped from setting up that these funds in their hands are not subject to the attachment in this suit; and also from setting up that John Laird, Jr., was not the owner thereof, or that Prioleau was the owner thereof when the attachment herein was served.' The circuit court declined to make the conclusions of law proposed by the libelants, and made and filed the following conclusions of law: '(1) As Prioleau was in fact the owner of the Wren at the time of her capture, he was in law the owner of the proceeds in the registry of the court after her sale. (2) The sentence of acquittal in the prize cause relieved the fund in court from all claim on the part of the captors, and left the owners free to assert their rights as against the world. (3) The decree in the prize suit did not adjudge the fund to Laird as owner, or deprive Prioleau of his interest. (4) The delivery of the fund to Foster & Thomson, as agents of Laird, placed them in the same situation in respect to it that would have been occupied by Laird if it had been put into his hands instead of theirs. (5) As Laird was not the real, but only the apparent, owner of the fund, he would have taken it, if payment had been made to him, in trust for Prioleau. (6) Foster & Thomson, as his agents, hold it upon the same trust, and are not accountable to the libelants in this action. (7) The decree of the district court requiring Foster & Thomson to pay the find into court, and subjecting it to the payment of the amount found due the libelants from Laird, was wrong and should be reversed.' The circuit court allowed a bill of exceptions tendered by the libelants, in which they excepted to each of its conclusions of law, and to its refusal to make each of the conclusions of law proposed by them. The libelants appealed from the last decree of the circuit court in favor of the garnishees; the garnishees appealed from the earlier decree of that court, dismissing their appeal from the first order of the district court against them; and the two appeals have been argued together. In a court of admiralty, as in a court of common law, a process of foreign attachment is auxiliary and incidental to the principal cause. Second Rule of Practice in Admiralty, 3 How. 3; Manro v. Almeida, 10 Wheat. 473; Atkins v. Fiber Disintegratiny Co. 18 Wall. 272. Neither the principal defendant nor the garnishees can appeal until after a final decree against them. The first decree against these garnishees, ascertaining their liability, was interlocutory only, and, if the libelants had ultimately failed to recover judgment against the principal defendant and execution against the garnishees, would have been of no avail to the libelants, and of no effect against the garnishees. The appeal of the garnishees from this interlocutory order of the district court was therefore rightly dismissed by the circuit court, and the order of dismissal must be affirmed. Upon the merits of the case, as presented by the appeal of the libelants from the final decree of the circuit court in favor of the garnishees, this court, after full consideration of the elaborate arguments of counsel, is satisfied of the correctness of that decree upon principle and authority. Prize courts are not instituted to determine civil and private rights, but for the purpose of trying judicially the lawfulness of captures at sea, according to the principles of public international law, with the double object of preventing and redressing wrongful captures, and of justifying the rightful acts of the captors in the eyes of other nations. The ordinary course of proceeding in prize causes is ill adapted to the ascertainment of controverted titles between individuals. It is wholly different from those which prevail in municipal courts of common law or equity, in the determination of questions of property between man and man. In Lindo v. Rodney, 2 Doug. 613, 614, Lord MANSFIELD said: 'The end of a prize court is to suspend the property till condemnation; to punish every sort of misbehavior in the captors; to restore instantly, velis levatis, (as the books express it, and as I have often heard Dr. Paul quote,) if, upon the most summary examination, there don't appear a sufficient ground; to condemn finally if the goods really are prize, against everybody, giving everybody a fair opportunity of being heard. A captor may, and must, force every person interested to defend, and every person interested may force him to proceed to condemn, without delay.' From the necessity of the case, and in order to interrupt as little as may be the exercise of the belligerent duties of the captors, or the voyage and trade of the captured vessel if neutral, the proceedings are summary. The libel is filed as soon as possible after the prize has been brought into a port of the government of the captors, and does not contain any allegation as to title, nor even set forth the grounds of condemnation, but simply prays that the vessel may be forfeited to the captors as lawful prize of war. The monition issued and published upon the filing of the libel summons all persons interested to show cause against the condemnation of the property as prize of war, and is returnable within a very few days,—too short a time to allow of actual notice to, or appearance or proof in behalf of, owners residing abroad. The law of nations presumes and requires that in time of war every neutral vessel shall have on board papers showing her character, and shall also have officers and crew able to testify to facts establishing her neutrality. The captors are therefore required immediately to produce to the prize court the ship's papers, and her master, or some of her principal officers or crew, to be examined on oath upon standing interrogatories, and without communication with or instruction by counsel. The cause is heard in the first instance upon these proofs, and they show clear ground for condemnation or for acquittal, no further proof is ordinarily required or permitted. If the evidence in preparatorio shows no ground for condemnation, and no circumstances of suspicion, the captors will not ordinarily be allowed to introduce further proof, but there must be an acquittal and restitution. The Aline & Fanny, Spinks, Prize Cas. 322, and 10 Moore, P. C. 491; The Sir William Peel, 5 Wall. 517, 534. When further proof is ordered, it is only from such witnesses and upon such points as the prize court may in its discretion think fit. It is doubtless true, as said by Chief Justice MARSHALL in the passage cited by these libelants from Jennings v. Carson, 4 Cranch, 2, 23, that 'the proceedings of that court are in rem, and their sentences act on the thing itself. They decide who has the right, and they order its delivery to the party having the right. The libelant and the claimant are both actors. They both demand from the court the thing in contest.' But the point there adjudged was that, pending the proceedings, the property was in the possession of the court, and not left in the possession of either party, without security; and there is no intimation that a claimant, who proves his right as against the captors to have the possession of the vessel restored to him, must also prove his title in the vessel as against other persons not before the court. The prize court will not, indeed, permit a stranger to dispute the right of the captors, and generally requires a claim to be made by or in behalf of the general owner, and upon oath. But the claimant is required to give evidence of a title to the property, not for the purpose of having that title established by the decree of the prize court, but only for the purpose of showing that he is acting in good faith, and is entitled to contest the question of prize or no prize, and to have restitution of possession in case of acquittal. From the necessity of the case, the claim is often put in by the master on behalf of the owner, and it is sufficient if the master's oath is to belief only. By the practice prevailing in England at the time of the declaration of independence, and for some years before and after, the master often put in a general claim for himself and all others interested, without naming them. The Hendric & Alida, Marriott, 96, 99, 123; The Prosperite, Id. 164; The Jungfre Maria, Id. 273, 283. In the report made in 1753 by Sir GEORGE LEE, judge of the prerogative court, Dr. PAUL, advocate general, Sir DUDLEY RYDER, attorney general, and afterwards chief justice, and Mr. MURRAY, solicitor general, and afterwards Lord MANSFIELD, which was embodied in the famous answer to the Prussian memorial, the only requisite mentioned of a claim of ship or goods is that it 'must be supported by the oath of somebody, at least as to belief.' 1 Collectanea Juridica, 129, 135. Sir WILLIAM SCOTT and Sir JOHN NICHOLL, in their letter to Chief Justice JAY, when minister to England in 1794, stating the general principles of proceeding in prize causes in British courts of admiralty, observed that those principles could not be more correctly or succinctly stated than in an extract which they gave from that report, including the passage just quoted; and, in describing the measures which ought to be taken by the neutral claimant, said: 'The master, correspondent, or consul applies to a proctor, who prepares a claim, supported by an affidavit of the claimant, stating briefly to whom, as he believes, the ship and goods claimed belong, and that no enemy has any right or interest in them.' Wheat. Captures, 311, 314. It has often been said by judges of high authority that the claimant has the burden of proving his title to the property. But in the leading cases in which this was said there was but a single claimant, and either, as in The Walsingham Packet, 2 C. Rob. 77, 87, and The Bremen Flugge, 4 C. Rob. 90, 92, the words 'support his title' were used as equivalent to the general expression 'prove the neutrality of the property,' (Croudson v. Leonard, 4 Cranch, 434, 437; The Mary, 9 Cranch, 126, 146; Story's note, 1 Wheat. 506; The Amiable Isabella, 6 Wheat. 1, 77;) or else the neutral claimant asserted a title in property appearing to have once belonged to an enemy, as in The Rosalie & Betty, 2 C. Rob. 343, 359; The Countess of Lauderdale, 4 C. Rob. 283; and The Soglasia, 2 Spinks, 101; S. C. Spinks, Prize Cas. 104. And in The Maria, 11 Moore, P. C. 271, 286, 287, Lord Chief Justice COCKBURN, delivering the judgment of himself, Lords Justices KNIGHT, BRUCE, and TURNER, Sir EDWARD RYAN, Sir JOHN DODSON, and Mr. Justice MAULE, reversing upon the facts a decree of Dr. LUSHINGTON, emphatically declined to assent to the application of the rule to a case in which the property appeared to be neutral, although not shown to belong to the claimant. The proceedings of a prize court being in rem, its decree, as is now universally admitted, is conclusive, against all the world, as to all matters decided and within its jurisdiction. Williams v. Armroyd, 7 Cranch, 423; Bradstreet v. Neptune Ins. Co. 3 Sumn. 600. But it does not, as Chief Justice MARSHALL observed, 'establish any particular fact, without which the sentence may have been rightfully pronounced.' If the vessel is condemned as prize, and sold by order of the court, the decree of condemnation and sale is conclusive evidence of the lawfulness of the capture and of the title of the purchaser. But if, as is usual, it does not state the ground of condemnation, it is not even conclusive that the vessel is enemy's property, for it may have been neutral property condemned for resisting a search, or attempting to enter a blockaded port; and, 'of consequence, this sentence, being only conclusive of its own correctness, leaves the fact of real title open to investigation.' Maley v. Shattuck, 3 Cranch, 458, 488. So a decree of acquittal and restitution conclusively determines as to all the world that the vessel is not lawful prize of war. The Apollon, 9 Wheat. 362; Magoun v. New England Ins. Co. 1 Story, 157. But, as it operates in rem, it is not invalidated by the fact that pending the proceedings the sole claimant has died and his representatives have not been made parties. Penhallow v. Doane, 3 Dall. 54, 86, 91; Story's note, 2 Wheat. App. 68; 3 Phill. Int. Law, § 492. It does not establish the title of any particular person, unless conflicting claims are presented to the court and passed upon. In Penhallow v. Doane, Mr. Justice IREDALL said: 'In case of a bona fide claim, it may appear to be good by the proofs offered to the court, but another person living at a distance may have a superior claim which he has no opportunity to exhibit. It is true, a general monition issues, and this is considered notice to all the world; but, though this be the construction of the law from the necessity of the case, it would be absurd to infer in fact that all the world had actual notice and therefore no superior claimant to the one before the court could possibly exist.' 3 Dall. 91. When no other person interposes a claim, restitution of ship or goods is ordinarily decreed to the master as representing the interests of all concerned, or to the person who by the ship's papers or by the master's oath appears to be the owner. As said by Mr. Justice STORY, and repeated by Sir ROBERT PHILLIMORE: 'The property, upon a decree of restitution, may be delivered to the master as agent of the shipper, for in such case the master is agent of the shipper, and is answerable to him.' 2 Wheat. App. 70; 3 Phill. Int. Law, § 495. See letter of Sir WILLIAM SCOTT and Sir JOHN NICHOLL to Chief Justice JAY, above cited; and Rose v. Himely, 4 Cranch, 241, 277, in which Chief Justice MARSHALL said: 'Those on board a vessel are supposed to represent all who are interested in it, and if placed in a situation which requires them to take notice of any proceedings against a vessel and cargo, and enables them to assert the rights of the interested, the cause is considered as being properly heard, and all concerned are parties to it.' Even when conflicting claims of title are put in, the prize court will not ordinarily determine between them, unless one of the claimants is a citizen of its own country. Thus, in a case in which an American vessel was taken by the Danes and captured from them by an English ship of war, and brought into the high court of admiralty as prize, the master made affidavit that he had previously sold her, under the pressure of necessity, by reason of injuries from perils of the sea, to one Ormsby, an American, from whom the Danes took her; and separate claims were presented in behalf of Ormsby, and of Coit and Edwards, also Americans, who were admitted to be the original owners, and whose names appeared as such in the register and other papers of the ship. Sir WILLIAM SCOTT, after observing upon the circumstances attending the sale by the master, said: 'But the court is not called upon to determine upon the validity of the title, which may be matter of discussion hereafter in the American courts. It is only required to give possession.' 'The ship's register, and all the papers, point to Coit and Edwards as the owners of the vessel,* and I have no hesitation in restoring the possession to them.' 'I therefore restore the possession of the vessel to the persons appearing by the register and ship's papers to be the owners, without prejudice to such rights as Mr. Ormsby, or any other persons, may have acquired by purchase or otherwise, as shall appear to the proper court of justice in America.' The Fanny & Elmira, Edw. Adm. 117, 120, 121. In The Lilla, 2 Spr. 177, affirmed on appeal, 2 Cliff. 169, an American vessel owned by Maxwell, a citizen and resident of Maine, was taken by a confederate privateer and carried into Charleston, South Carolina, and there condemned and sold by a tribunal, acting under the assumed authority of the confederate states, to persons who took her to England, where she was registered in the name of one Bushby, after which she was captured on the high seas and brought in by a United States gun-boat. Claims were presented by Maxwell and by Bushby, and after hearing counsel in behalf of each claimant, as well as of the captors, the court decided against the claim of Bushby, and ordered the vessel to be restored to Maxwell, on condition of payment of salvage to the recaptors. But the opinion of Judge SPRAGUE shows that jurisdiction over the question of title was exercised only to protect the rights of one of our own citizens against foreigners to property in the possession of the court, and that if the question of ownership were wholly between foreigners, the court might refuse to decide it. 2 Sprague, 187. As incidental to the question of the lawfulness of the capture, prize courts have doubtless jurisdiction to determine the liability of the captors for damages, expenses, and costs occasioned by their own wrongful acts, or by the fault of those in charge of the prize while in their custody. Le Caux v. Eden, 2 Doug. 594, 610; The Siren, 7 Wall. 152; 1 Kent, Comm. 359. But the learning and research of counsel have failed to furnish a single case where there was but one claimant of property libeled as prize of war, in which a prize court has undertaken to pass upon the validity of his title as against other persons, or in which its decree has been set up in a subsequent suit as an adjudication of that title as between him and them. All the proceedings in the case of The Wren were according to the usual practice in prize causes. The libel was filed within three days, and the monition was returnable, and the hearing upon the evidence in preparatorio had, within 14 days, after the capture. The only claim put in was by the master under oath, stating positively that he was the master and as such lawful bailee of the vessel, and claimed her for the owner. The further statement in the claim that Laird, and no other person, was the true and bona fide owner of the vessel, was only upon information and belief, and reference to her register in the possession of the court. That register was dated at Liverpool six months before, showed Laird to have been the owner, and had at its foot a memorandum stating that by the Merchant Shipping Act 1854, (St. 17 & 18 Vict. c. 104,) it was not a document of title, and did not necessarily contain notice of all changes of ownership. The court ordered further proof from certain witnesses on specified interrogatories to be taken forthwith, and, after a final hearing upon the whole evidence, announced, within 22 days from the filing of the libel, its decree of condemnation, which was afterwards entered in form. The decree of this court on appeal merely reversed the decree of condemnation and directed the vessel to be restored to the claimant. The references in the argument of counsel before this court, and in its judgment delivered by Mr. Justice NELSON, to the evidence upon the question whether she was the property of Laird or of other persons, were only by way of assisting in the determination of the sole question at issue, whether she was or was not enemy's property and therefore lawful prize. The Wren, 6 Wall. 582. The final decree of the district court recited the decree and mandate of this court, and in conformity therewith ordered the proceeds to be paid to Laird, the person appearing to be the owner by the ship's papers and according to the best information and belief of the master, as stated in the claim put in by him. Neither the decree of this court nor the subsequent decree of the district court determined, or assumed to determine, any question of title as between Laird and Prioleau, or other persons who had not appeared in the cause nor contested Laird's claim. The libelants, in this suit against Laird personally, and against Foster & Thomson as his garnishees, have the burden of proving that the fund in the hands of the garnishees belongs to Laird. There is nothing in the acts of Prioleau, or of the garnishees as his attorneys, which estops the garnishees to deny that fact and to put the libelants to proof of it. He had no knowledge of the prize proceedings until after the decree of condemnation. Having a title to the vessel under the bill of sale from Laird, he prosecuted the appeal from that decree in Laird's name and by Laird's authority. Whatever effect Prioleau's omission to disclose his own interest might have had, if discovered, upon the issue in the prize cause, or might have by way of estoppel, if the present suit were brought by the United States, he has done nothing which Laird or Laird's creditors have been misled by or have acted upon. The title in the vessel, as between Laird and Prioleau, was in Prioleau. The garnishees, being attorneys both of Laird and Prioleau, received the proceeds in the name of Laird, but for Prioleau. There being no estoppel, either of record or in pais, the libelants fail to prove that the fund belongs to Laird, and cannot, therefore, maintain their attachment. This case does not present the question whether, if Prioleau were plaintiff or actor, seeking affirmative relief against Laird or against these libelants, he must be considered as standing in such a position, by reason of his having concealed from the prize court his own title to the vessel, and of his having permitted restitution to be decreed to Laird, that the court would decline to assist him, upon the principle applied in De Metton v. De Mello, 12 East, 233, and 4 Campb. 420. Decrees affirmed. BLATCHFORD, J., did not sit in this case, and took no part in its decision.
106.US.589	1. Thompson v. Perrine, 103 U. S. 806, cited and[ reaffirmed. 2. Overdue coupons detached from a municipal bond which has not matured are negotiable by the law merchant. 8. Where coupons are payable to bearer, the right of the holder thereof to sue thereon in a court of the United States does not depend upon the citizenship of any previous holder. He is not an assignee, within the meaning of the act of March 3, 1876, c. 137.	In Thompson v. Perrine, 103 U. S. 806, we affirmed a judgment of the circuit court of the United States for the southern district of New York, against the town of Thompson, in that state for the amount of certain coupons of bonds, executed in behalf of that town, by virtue of the provisions of an act passed May 4, 1868, and amended April 1, 1869. Those acts, as will be seen from the statement of the former case, authorized the town of Thompson, in aid of the construction of a railroad from Monticello, New York, to Port Jervis, in the same state,—a majority of its tax-payers, appearing upon the last assessment-roll, and representing a majority of the taxable property, not including lands of non-residents, having first consented to the debt being contracted,—to issue bonds, and to invest the proceeds, when disposed of, in the capital stock of the railroad company organized to construct the proposed road. Bonds were issued, and instead of selling them and investing the proceeds in the company's stock, the local authorities exchanged them directly with the railroad company for stock. This, according to certain decisions of the highest court of New York, was in violation of the act giving authority to issue the bonds. But, by an act passed April 28, 1871,—previous to which time the bonds had been issued and delivered,—that exchange for stock was, in express terms, ratified and confirmed. And the controlling question in the former case was as to the constitutional validity of the latter statute. In Horton v. Town of Thompson, 71 N. Y. 513, decided January, 1878, the court of appeals of New York held that as the tax-payers had only consented to an issue of bonds, the proceeds of the sale of which should be invested in stock, it was beyond the power of the legislature to validate bonds, which, in violation of the act under which they were issued, were not sold, but were directly exchanged for stock, of which fact all purchasers had notice from the recitals of the bonds themselves. That adjudication, it was contended, was binding upon this court. But to that proposition we declined to give our assent, and stated, with some fullness, the reasons why this court could not give to the decision in Horton's Case the effect claimed for it by the town. We held, for reasons which need not be repeated, that it was within the constitutional power of the legislature of New York to pass the curative statute of April 28, 1871, and that from the moment it was enacted (if not before) the bonds, by whomsoever held, whether by the railroad company or others, became binding obligations upon the town, as much so as if they had originally been sold and the proceeds invested in stock of the railroad company, as required by the acts under which they were issued. That decision controls the present case, for the latter, in its essential features, differs from the former only in the circumstance of the time when Perrine acquired title to the coupons in suit. Those heretofore sued on were purchased by him in 1875, while those now in suit were purchased by him in 1878, when they were overdue, and after the decision in 71 N. Y. was announced. Counsel for the town now insist that this court should follow the ruling in that case, at least as to holders of coupons or bonds who purchased after Horton v. Town of Thompson was decided; and they suppose that this court placed its former decision upon the ground mainly that Perrine purchased the bonds there in suit before the court of appeals declared the act to be unconstitutional. But in this view we do not concur. The reference, in the former case, to the date when Perrine purchased, was to illustrate the injustice which would be done were we, in opposition to our own view of the law, to follow the ruling of the state court made after he purchased,—a decision which, with entire respect for the state court, was held not to be in harmony with its former decisions. What we decided was that the curative statute was within the limits of legislative power, and that, at least from its passage, the bonds, by whomsoever held, whether by the railroad company or others, became enforceable obligations of the town. Mitchell v. Burlington, 4 Wall. 274, 275; Taylor v. Ypsilanti, 105 U. S. 60; Ohio L. & T. Co. v. Debolt, 16 How. 433. There is, however, one point made in this case, not made in the former one, and which it is our duty to notice. It is that this action is excluded by statute from the jurisdiction of a circuit court of the United States. The eleventh section of the judiciary act of 1789 declares that no district or circuit court shall 'have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange.' 1 St. 78; Rev. St. § 629. The provision in the act of March 3, 1875, is: 'Nor shall any circuit or district court 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, except in cases of promissory notes negotiable by the law-merchant, and bills of exchange.' It is not claimed that the words 'assignee' and 'assignment,' as found in the act of 1875, have any meaning different from that attached to the same words in the act of 1789, or in section 629 of the Revised Statutes. But the contention of counsel is that the coupons in suit, being detached from the bonds and overdue when Perrine purchased them, were dishonored, and therefore not negotiable by the law-merchant; consequently, it is claimed, they are not within the exception of promissory notes negotiable by the law-merchant, but are embraced by the general inhibition upon suits founded on contract where the assignor himself could not have sued in the circuit court. This position cannot be sustained. It is an immaterial circumstance that the coupons, when purchased by Perrine, were detached from the bonds. And the bonds not having then matured, the coupons, though overdue, had not lost the quality of negotiability bt the law-merchant. This result must follow from the principles announced in Cromwell v. County of Sac, 96 U. S. 58. Further, and apart from any consideration of the question as to the negotiability, according to the law-merchant, of these coupons, Perrine is not an assignee within the meaning of the act of 1875, or of the previous statutes relating to the same subject. Giving the words 'assignee' and 'assignment' their broadest signification, and conceding that, in some cases, the holder of a promissory note mayk become such in virtue alone of an assignment, yet, according to the established construction of the judiciary act of 1789, the right of the holder of a promissory note or bond, payable to a particular person or bearer, to sue in his own name, did not depend upon the citizenship of the named payee or of the first or any previous holder; this, because, in all such cases, the title passed by delivery and not in virtue of any assignment. In Bullard v. Bell, 1 Mason, 251, Mr. Justice STORY said that to bring a case within the exception contained in the eleventh section of the act of 1789, 'the action must not only be founded on a chose in action, but it must be assignable; and the plaintiff must sue in virtue of an assignment.' 'A note,' said he, 'payable to bearer, is often said to be assignable by delivery; but in correct language there is no assignment in the case. It passes by mere delivery, and the holder never makes any title by or through any assignment, but claims merely as bearer. The note is an original promise by the maker to pay any person who shall become the bearer; it is, therefore, payable to any person who successively holds the note bona fide, not by virtue of any assignment of the promise, but by an original and direct promise, moving from the maker to the bearer.' In Bank of Kentucky v. Wister, 2 Pet. 326, this court said that it had 'uniformly held that a note payable to bearer is payable to anybody, and is not affected by the disabilities [to sue] of the nominal payee.' Thompson v. Lee Co. 3 Wall. 331; Bushnell v. Kennedy, 9 Wall. 391; City of Lexington v. Butler, 14 Wall. 293; Cooper v. Town of Thompson, 13 Blatchf. 434; Coe v. Cayuga Lake R. Co. 19 Blatchf. 522. The coupons here in suit are payable to the holder thereof, and, upon the authority of the adjudged cases, Perrine is not an assignee within the meaning of the act of 1875. He is entitled to sue without reference to the citizenship of any previous holder. We perceive no error in the record, and the judgment must be affirmed. It is so ordered.
108.US.208	Under an act of the legislature of Missouri, county courts of counties were authorized to subscribe, in behalf of townships in their respective counties, to the capital stock of any railroad company within that State "building or promising to build a railroad into, through, or near such township, and to issue bonds in the name of the county in payment; of such subscription. There was a vote of a township in favor of issuing bonds in aid of a particular railroad company. The subscription was made and the bonds issued, reciting that they were authorized by a vote of the people, and were issued under and pursuant to an order of the county court by authority of the act. When the vote was taken and the bonds issued, the company did not propose to build a road into or through the township, but it was proposing to build one from a point nine miles distant from the township to a farther distance. Interest on the bonds was paid for three years. In a suit on coupons of the bonds by a bona fide holder for value: Held, That the courts should acquiesce in the determination by the qualified voters and the local authorities that the proposed road was near the township, and hold that there was legislative authority for issuing the bonds.	This is an action upon sundry coupons of bonds issued in November, 1868, and March, 1869, by the county court of Lafayette county, Missouri, in the name of that county, and in payment of a subscription by it made, in behalf of Lexington township, in that county, to the capital stock of the St. Louis & St. Joseph Railroad Company, a corporation created under the laws of that state. The bonds recite that they were authorized by a vote of the people, and also that they were issued 'under and pursuant to an order of the county court of Lafayette county, by authority of an act of the general assembly of the state of Missouri, approved March 23, 1868, entitled 'An act to facilitate the construction of railroads in the state of Missouri." The special finding of facts presents a single question, viz., whether there was legislative authority for this issue of bonds. Its decision depends upon the construction to be given to that part of the before-mentioned act which invests county courts in Missouri with power to subscribe in behalf of townships, in their respective counties, to the capital stock of any railroad company within that state, 'building or proposing to build a railroad into, through, or near such township,' etc. When these bonds were voted by the township, as well as when they were issued, the St. Louis & St. Joseph Railroad Company did not propose to build the road into or through Lexington township, but it was proposing to build the road which its charter authorized it to construct and operate, to-wit, from Richmond, in Ray county, by the way of Plattsburg, to St. Joseph, in Buchanan county. Richmond is nine miles distant from Lexington township. The contention of the defendant in error is that a road so far away was not, within the provisions of the statute, near to the township. The word 'near' is relative in its signification. What would be near in one locality would not be in another. Each case must be governed by its special circumstances. The main inquiry was whether a railroad, when constructed, would be near enough to contribute to the convenience or advance the business interests of the particular township involved. It cannot be said, as a matter of law, that this road was not near enough to Lexington township to bring about such results. That was a question which the people of that township and the county court of the county were qualified and, within reasonable limits, authorized to settle for themselves. Their action in favor of a subscription was supplemented by payment of interest for three years. Under these circumstances, as between the township and a Bona fide holder for value, as the plaintiff is conceded to be, the courts should acquiesce in the determination by the qualified voters and the local authorities that the road in question was near to Lexington township. If there was error in this determination, it is not so plain as to justify the courts in disturbing the practical construction put upon the statute, at the time the bonds were voted and issued, by those immediately interested in executing its provisions. Von Hoxtrup v. Madison, 1 Wall. 291; Meyer v. Muscatine, Id. 391. The judgment is reversed, with directions to enter judgment for plaintiff.
108.US.462	The facts in this case show a public use of the alleged invention for more than four years prior to the date of the patent.	This was a suit brought by the appellants, John J. Manning and Caleb J. Norwood, to restrain the infringement by the appellees of letters patent dated January 7, 1873, issued to the appellants and W. N. Manning, as assignees of the inventor, James Manning. By the subsequent assignment of W. N. Manning the appellants became vested with the title to the entire patent. It is well known that the swimming bladders or sounds of certain fishes are largely composed of that variety of gelatin called isinglass. The sounds are usually found in the market in a dry and hard state. They are manufactured into insinglass by a mechanical operation, which consists in passing the macerated sound successively between several sets of rollers, the first set kneading the sounds into a homogeneous sheet, and the subsequent sets squeezing and elongating the sheets into the ribbons of isinglass known to commerce. The invention covered by the patent sued on was for 'an improvement in the manufacture of isinglass from fish-sounds.' The specification of the patent declared as follows: 'In the manufacture of ribbon isinglass from fish-sounds it is customary to feed the softened and moist or macerated sounds to and between feed and compressing rollers, by which the viscid substance is compressed and joined and formed into a continuous sheet. Notwithstanding the constant application of cold water into the rolls, the substance adheres tenaciously to the roll and accumulates thereupon, and has to be cut away therefrom; an operation which is very slow and laborious, and productive of imperfect sheets. 'My invention is designed to obviate the return of the adhering gelatinous substance to the action of the rolls before it is stripped therefrom, and to so strip it that the rolls may work continuously or without stoppage; the ribbon, as it is stopped, being again fed or guided by the operator into and between the rolls until sufficiently reduced or elongated for removal or for the action of other rolls set nearer together to produce a thinner ribbon. 'To effect this result I place at the side of each roll a scraper extending the whole length of the roll, and having an edge set up to the roll, so that the roll shall run just clear of it, which scraper or cleaner strips from the whole surface of the roll the adhering gelatine in the form of a sheet. 'The invention consists in this method of passing the isinglass between hollow rolls, cooled by water thrown into the rolls, and then stripping the gelatinous matter from the rollers and returning it to the hopper to be again treated, the rollers being adjustable.' 'The herein described method of converting isinglass into sheets of any desired thickness by running it between hollow rolls into which cold water is thrown to cool the compressing surfaces, such rolls being preferably made adjustable to graduate the degree of compression, and the adhering sheets being removed from the rolls by stationary scrapers or clearers and returned to the hopper as required.' One of the defenses set up in the answer and relied on was that the improvement described in the patent had been in public use for more than two years before the patent was applied for. The circuit court dismissed the bill on that ground. From its decree this appeal is prosecuted by the complainants. Thos. Wm. Clarke, for appellants. Geo. L. Roberts, for appellees. WOODS. J. We think that the defense, that the improvement described in the patent had been in public use for more than two years prior to the application therefor, is established by the testimony. The appellants contend that the patent covers an improvement in the process of making isinglass. It is not contended that the patent covers the rolls between which the fish-sounds are passed, or the keeping of the rolls cool by making them hollow and injecting a stream of cold water into the cavity, nor the automatic scrapers, but in the use of automatic scrapers applied to such rolls to prevent the isinglass from being carried through the rolls a second time without aeration. The testimony shows that as early as the year 1860, James Manning, the inventor, was engaged in the manufacture of isinglass at Ipswich, Massachusetts, in copartnership with his brother-in-law Caleb Norwood, under the name of Norwood & Manning. In that year Oliver C. Smith, a machinist at Salem, constructed for the firm a machine containing adjustable hollow water-cooled rolls, with stationary scrapers, substantially such as are described in the patent, for converting isinglass into sheets in the manner therein set forth. The use of this machine was continued down to the year 1867, when the firm of Norwood & Manning was dissolved. In the division of the assets of the firm between the partners, the machine with the scraper, made by Smith, fell to Norwood. He took into the business with him as a partner his son, Caleb J. Norwood, and continued it in the same factory from 1867 to 1870, using the machine with the stationary scraper which had been made by Smith. James Manning, after the dissolution of the firm of Norwood & Manning, established an isinglass factory at Rockport, Massachusetts, and procured to be constructed two machines similar to that disclosed in the patent. With this factory and machinery he set up in business his two sons, John J. Manning and William N. Manning, and they carried on the business of manufacturing isinglass, under the name of J. J. Manning & Brother, from the year 1868 until the testimony in this case was taken in 1877, using the two machines with scrapers above mentioned. James Manning, the inventor, had no interest in the business carried on by Norwood and his son after the dissolution of the firm of Norwood & Manning in 1867, nor in the business of J. J. Manning & Brother, carried on from 1868 until after the issue of the patent. Some attempt is made to show that the use of the machines in the factory of Caleb Norwood, from 1867 to 1870, was a secret and not a public use. But we think the testimony shows a use open to the public generally. But whether this be so or not is immaterial, for Norwood and his son were allowed by the inventor the unrestricted use of the patent during the period mentioned, without injunction of secrecy or other condition. This is sufficient to constitute a public use. Egbert v. Lippman, 104 U. S. 333. The decided weight of the evidence shows that there was also a public use of the invention in the factories of J. J. Manning & Brother for more than four years prior to the application for the patent; namely, from 1868 to 1873. It is also made clear by the testimony, not only that the machinery but the process used by Norwood & Manning from 1860 to 1867, by Norwood & Son from 1867 to 1870, and by J. J. Manning & Brother from 1868 to 1873, and after that year, was substantially the same as that described in the patent. During all these years there was no material change, either in the machinery or the process. The use of the machinery and process was not, therefore, an experimental use. These conclusions of fact are fatal to the complainant's case. It is the policy of the patent laws to forbid the issue of a patent for an invention which has been in public use before the application therefor. The statute of 1836 (5 St. 117, § 6) did not allow the issue of a patent when the invention had been in public use or on sale for any period, however short, with the consent or allowance of the inventor; and the statute of 1870 (16 St. 201, § 24; Rev. St. § 4886) does not allow the issue, when the invention had been in public use for more than two years prior to the application, either with or without the consent or allowance of the inventor. Under either of these statutes the patent relied on in this case was improvidently issued, for there was a public use, with the consent of the inventor, for more than two years prior to the application. The patent is therefore void. McClurg v. Kingsland, 1 How. 202; Egbert v. Lippman, ubi supra; Consolidated Fruit-jar Co. v. Wright, 94 U. S. 92; Worley v. Tobacco Co. 104 U. S. 340. The decree of the circuit court was therefore right, and must be affirmed.
107.US.221	1. A. was convicted of murder in the first degree, and the judgment of condemnation was affirmed by the Supreme Court of Missouri. A previous sentence pronounced on his plea of guilty of murder in the second degree, and subjecting him to an imprisonment for twenty-five years, had, on his appeal, been reversed and set aside. By the law of Missouri in force when the homicide was committed this sentence was an acquittal of the crime of murder in the first degree; but before his plea of guilty was entered the law was changed, so that by force of its provisions, if a judgment on that plea be lawfully set aside, it shall not be held to be an acquittal of the higher crime. fHeld, that as to this case the new law was an ex post facto law, within the meaning of sect. 10, art. 1, of the Constitution of the United States, and that he could not be again tried for murder in the first degree. 2. The history of the ex post facto clause of the Constitution reviewed in connection with its adoption as a part of the Constitution, and with its subsequent construction by the Federal and the State courts. 3. The distinction between retrospective laws, which relate to the remedy or the mode of procedure, and those which operate directly on the offence, is unsound where, in the latter case, they injuriously affect any substantial right to which the accused was entitled under the law as it existed when the alleged offence was committed. 4. Within the meaning of the Constitution, any law is ex post facto which is enacted after the offence was committed, and which, in relation to it or its consequences, alters the situation of the accused to his disadvantage.	This is a writ of error to the supreme court of Missouri. The plaintiff in error was indicted in the criminal court of St. Louis for murder in the first degree, charged to have been committed January 4, 1875, to which he pleaded not guilty. He has been tried four times before a jury, and sentenced once on plea of guilty of murder in the second degree. His case has been three times before the court of appeals of that state, and three times before the supreme court of the state. In the last instance, the supreme court affirmed the judgment of the criminal court, by which he was found guilty of murder in the first degree and sentenced to be hung, and it is to this judgment that the present writ of error is directed. It is to be premised that the court of appeals is an intermediate appellate tribunal between the criminal court of St. Louis and the supreme court of the state, to which all appeals of this character are first taken. At the trial, immediately preceding the last one in the court of original jurisdiction, the prisoner was permitted to plead guilty to murder in the second degree, which plea was accepted by the prosecuting attorney and the court, and on this plea he was sentenced to imprisonment in the penitentiary for 25 years. He took an appeal from this judgment, on the ground that he had an understanding with the prosecuting attorney that if he would plead as he did his sentence should not exceed 10 years' imprisonment, and the supreme court reversed that judgment, and remanded the case to the St. Louis criminal court for further proceedings. In that court, when the case was again called, the defendant refused to withdraw his plea of guilty of murder in the second degree, and refused to renew his plea of not guilty, which had been withdrawn when he pleaded guilty to murder in the second degree, and the court, against his remonstrance, made an order setting aside his plea of guilty of murder in the second degree, and ordered a general plea of not guilty to be entered. On this plea he was tried by a jury and found guilty and sentenced to death, as we have already said, which judgment was affirmed by the supreme court of the state. By refusing to plead not guilty to murder in the first degree and to withdraw his plea of guilty in the second degree, defendant raised the point that the proceedings under that plea, namely, its acceptance by the prosecuting attorney and the court, and his conviction and sentence under it, was an acquittal of the charge of murder in the first degree, and that he could not be tried again for that offense. This point he insisted on in the circuit court, and relied on it for reversing the judgment in the court of appeals and in the supreme court. Both these latter tribunals, in the opinions delivered by them, and which are part of the record, conceded that such was the law of the state of Missouri at the time the homicide was committed. But they overruled the defense on the ground that by section 23 of article 2 of the constitution of Missouri, which took effect November 30, 1875, that law was abrogated, and for this reason defendant could be tried for murder in the first degree, notwithstanding his conviction and sentence for murder in the second degree. As this new constitution was adopted after the crime was committed for which Kring is indicted, and, as construed by the court of appeals and the supreme court, changes the law as it then stood to the disadvantage of the defendant, the jurisdiction of this court is invoked on the ground that, as to this case, and as so construed, it is an ex post facto law, within the meaning of section 10, art. 1, of the constitution of the United States. That it may be clearly seen what the supreme court of Missouri decided on this subject and what consideration they gave it, we extract here all that is said in their opinion about it. 'There is nothing in the point,' they say, 'that after an accepted plea of guilty of murder of the second degree the defendant could not be put upon trial for murder of the first degree. We shall, on that proposition, accept what is said by the court of appeals in its opinion in this cause.' What that court said on this subject is as follows: 'The theory of counsel for defendant that a plea of guilty of murder in the second degree, regularly entered and received, precludes the state from afterwards prosecuting the defendant for murder in the first degree, is inconsistent with the ruling of the supreme court in State v. Kring, 71 Mo. 551, and in State v. Stephens, Id. 535. The declarations of defendant that he would stand upon his plea already entered were all accompanied with a condition that the court should sentence him for a term not to exceed 10 years, in accordance with an alleged agreement with the prosecuting attorney, which the court would not recognize. The prisoner did not stand upon his plea of guilty of murder in the second degree; he must, therefore, be taken to have withdrawn that plea, and, as he refused to plead, the court properly directed the plea of not guilty of murder in the first degree to be entered. 'Formerly it was held in Missouri (State v. Ross, 20 Mo. 32 that when a conviction is had of murder in the second degree on an indictment charging murder in the first degree, if this be set aside the defendant cannot again be tried for murder in the first degree. A change introduced by section 23 of article 2 of the constitution of 1875 has abrogated this rule. On the oral argument something was said by counsel for the defendant to the effect that under the old rule defendant could not be put on his trial for murder in the first degree, and that he could not be affected by the change of the constitutional provision, the crime having been committed while the old constitution was in force. There is, however, nothing in this; this change is a change, not in crimes, but in criminal procedure, and such changes are not ex post facto. Gut v. State, 9 Wall. 35; cummings v. Missouri, 4 Wall. 326.' We have here a distinct admission that by the law of Missouri, as it stood at the time of the homicide, in consequence of this conviction of the defendant of the crime of murder in the second degree, though that conviction be set aside, he could not be again tried for murder of the first degree; and that, but for the change in the constitution of the state, such would be the law applicable to his case. When the attention of the court is called to the proposition that if such effect is given to the change of the constitution it would, in this case, be liable to objection as an ex post facto law, the only answer is that there is nothing in it, as the change is simply in a matter of procedure. Whatever may be the essential nature of the change, it is one which, to the defendant, involves the difference between life and death, and the retroactive character of the change cannot be denied. It is to be observed that the force of the argument for acquittal does not stand upon defendant's plea, nor upon its acceptance by the state's attorney, nor the consent of the court; but it stands upon the judgment and sentence of the court by which he is convicted of murder in the second degree, and sentence pronounced according to the law of that guilt, which was by operation of the same law an acquittal of the other and higher crime of murder charged in the same indictment. It is sufficient for this case that the supreme court of Missouri, in the opinion we are examining, says it was so, and cites as authority for it the case of State v. Ross, 29 Mo. 32, in the same court; but counsel for plaintiff in error cites to the same effect the cases of State v. Ball, 27 Mo. 327; State v. Smith, 53 Mo. 139. Blackstone says, (Comm. book 4, side page 336:) 'The plea of autrefois convict, or a former conviction for the same identical crime, through no judgment was ever given, or, perhaps, will be, (being suspended by benefit of clergy or other causes), is a good plea in bar to an indictment. And this depends upon the same principle as the former, (that is, autrefois acquit,) that no man ought to be twice brought in danger of his life for one and the same crime. Hereupon it has been held that a conviction of manslaughter, on an appeal or indictment, is a bar even in another appeal, and much more in an indictment for murder; for the fact prosecuted is the same in both, though the offenses differ in coloring and degree.' See State v. Norvill, 2 Yerg. 24; 9 Yerg. 337. This law, in force at the date of the homicide for which Kring is now under sentence of death, was changed by the state of Missouri between that time and his trial so as to deprive him of its benefit, to which he would otherwise have been entitled, and we are called on to decide whether in this respect, and as applied by the court to this case, it is an ex post facto law within the meaning of the constitution of the United States. There is no question of the right of the state of Missouri, either by the her fundamental law or by an ordinary act of legislation, to abolish this rule, and that it is a valid law as to all offenses committed after its enactment. The question here is, does it deprive the defendant of any right of defense which the law gave him when the act was committed, so that as to that offense it is ex post facto. This term necessarily implies a fact or act done, after which the law in question is passed. Whether it is ex post facto or not relates, in criminal cases, to which alone the phrase applies, to the time at which the offense charged was committed. If the law complained of was passed before the commission of the act with which the prisoner is charged, it cannot. As to that offense, be an ex post facto law. If passed after the commission of the offense, it is as to that ex post facto, though whether of the class forbidden by the constitution may depend on other matters. But, so far as this depends on the time of its enactment, it has reference solely to the date at which the offense was committed to which the new law is sought to be applied. No other time or transaction but this has been in any adjudged case held to govern its ex post facto character. In the case before us an argument is made founded on a change in this rule. It is said the new law in Missouri is not ex post facto, because it was in force when the plea and judgment were entered of guilty of murder in the second degree; thus making its character as an ex post facto law to depend, not upon the date of its passage as regards the commission of the offense, but as regards the time of pleading guilty. That, as the new law was in force when the conviction on that plea was had, its effect as to future trials in that case must be governed by that law. But this is begging the whole question, for if it was, as to the offense charged, an ex post facto law, within the true meaning of that phrase, it was not in force and could not be applied to the case, and the effect of that plea and conviction must be decided as though no such change in the law had been made. Such, however, is not the ground on which the supreme court and the court of appeals placed their judgment. 'There is nothing,' say they, 'in this; the change is a change, not in crimes, but in criminal procedure, and such changes are not ex post facto.' Before proceeding to examine this proposition, it will be well to get some clear perception of the purpose of the convention which framed the constitution in declaring that no state shall pass any ex post facto law. It was one of the objections most seriously urged against the new constitution by those who opposed its ratification by the states, that it contained no formal bill of rights. Federalist, No. 84. And the state of Virginia accompanied her ratification by the recommendation of an amendment embodying such a bill. 3 Elliott, Deb. 661. The feeling on this subject led to the adoption of the first 10 amendments to that instrument at one time, shortly after the government was organized. These are all designed to operate as restraints on the general government, and most of them for the protection of private rights of persons and property. Notwithstanding this reproach, however, there are many provisions in the original instrument of this latter character, among which is the one now under consideration. So much importance did the convention attach to it, that it is found twice in the constitution,—first as a restraint upon the power of the general government, and afterwards as a limitation upon the legislative power of the states. This latter is the first clause of section 10 of article 1, and its connection with other language in the same section may serve to illustrate its meaning: 'No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility.' It will be observed that here are grouped contiguously a prohibition against three distinct classes of retrospective laws, namely bills of attainder, ex post facto laws, and laws impairing the obligations of contracts. As the clause was first adopted, the words concerning contracts were not in it, because it was supposed that the phrase 'ex post facto law' included laws concerning contracts as well as others. But it was ascertained before the completion of the instrument that this was a phrase which, in English jurisprudence, had acquired a signification limited to the criminal law, and the words 'or any law impairing the obligation of contracts' were added to give security to rights resting in contracts. 2 Banc. His. Const. 213. Sir Thomas Tomlin, in that magazine of mearing, the English edition of 1835 of his Law Dictionary, says: 'Ex post facto is a term used in the law, signifying something done after, or arising from or to affect, another thing that was committed before.' 'An ex post facto law is one which operates upon a subject not liable to it at the time the law was made.' The first case in which this court was called upon to construe this provision of the constitution was that of Calder v. Bull, 3 Dall. 386, decided in 1798. The opinion of the court was delivered by CHASE, J., and its main purpose was to decide that it had no application to acts concerning civil rights. The opinion, however, is important, as it discusses very fully the meaning of the provision in its application to criminal cases. It defines four distinct classes of laws embraced by the clause: '(1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action; (2) every law that aggravates the crime of makes it greater than it was when committed; (3) every law that changes the punishment and inflicts a greater punishment than was annexed to the crime when committed; (4) every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender.' 'But I do not consider any law ex post facto, within the prohibition, that modifies the rigor of the law, but only these that create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction.' In the case before us the constitution of Missouri so changes the rule of evidence that what was conclusive evidence of innocence of the higher grade of murder when the crime was committed, namely, a judicial conviction for a lower grade of homicide, is not received as evidence at all, or, if received, is given no weight in behalf of the offender. It also changes the punishment, for, whereas the law, as it stood when the homicide was committed, was that, when convicted of murder in the second degree, he could never be tried or punished by death for murder in the first degree, the new law enacts that he may be so punished, notwithstanding the former conviction. But it is not to be supposed that the opinion in that case undertook to define, by way of exclusion, all the cases to which the constitutional provision would be applicable. Accordingly, in a subsequent case tried before Mr. Justice WASHINGTON, he said, in his charge to the jury, that 'an ex post facto law is one which, in its operation, makes that criminal which was not so at the time the action was performed, or which increases the punishment, or, in short, which, in relation to the offense or its consequences, alters the situation of a party to his disadvantage.' U.S. v. Hall, 2 Wash. C. C. 366. He adds, by way of application to that case, which was for a violation of the embargolaws: 'It the enforcing law applies to this case, there can be no doubt that, so far as it takes away or impairs the defense which the law had provided the defendant at the time when the condition of this bond became forfeited, it is ex post facto and inoperative.' This case was carried to the supreme court and the judgment affirmed. 6 Cranch, 171. The new constitution of Missouri does not take away what, by the law of the state when the crime was committed, was a good defense to the charge of murder in the first degree. In the subsequent cases of Cummings v. State and Ex parte Garland, 4 Wall. 277-333, this court held that a law which excluded a minister of the gospel from the exercise of his clerical function, and a lawyer from practice in the courts, unless each would take an oath that they had not engaged in or encouraged armed hostilities against the government of the United States, was an ex post facto law, because it punished, in a manner not before punished by law, offenses committed before its passage, and because it instituted a new rule of evidence in aid of conviction. Though this court was divided in that case, it was because the minority were of the opinion that the act in question was not a crimes act, and that it inflicted no punishment, in the judicial sense, for any past crime, and they did not controvert the proposition that it was an ex post facto law if it had that effect. In these cases we have illustrations of the liberal construction which this court, and Mr. Justice WASHINGTON in the circuit court, have given to the words 'ex post facto law'—a construction in manifest accord with the purpose of the constitutional convention to protect the individual rights of life and liberty against hostile retrospective legislation. Nearly all the states of the Union have similar provisions in their constitutions, and whether they have or not, they all recognize the obligatory force of this clause of the federal constitution on their legislation. A reference to some decisions of those courts will show the same liberality of construction of the provision, many of them going much further than is necessary to go in this case to show the error of the Missouri courts. In the supreme court of Massachusetts, in the case of Com. v. McDonough, 13 Allen, 581, it was held that a law passed after the commission of the offense of which defendant stood charged, which mitigated the punishment, as regarded the fine and the maximum of imprisonment that might be inflicted, was an ex post facto law as to that case, because the minimum of imprisonment was made three months, whereas before there was no minimum limit to the court's discretion. This slight variance in the law was held to make it ex post facto and void as to that case, though the effect of the decision was to leave no law by which the defendant could be punished, and he was discharged, though found guilty of the offense. In the case of Hartuny v. People, 22 N. Y. 95, after she had been convicted of murder and sentenced to death, and while her case was pending on appeal, the legislature of that state changed the law for the punishment of murder in general, so as to authorize the governor to postpone indefinitely the execution of the sentence of death, and to keep the party confined in the penitentiary at hard labor until he should order the full execution of the sentence or should pardon or commute it. The court of appeals held that, while this later law repealed all existing punishments for murder, it was ex post facto as to Mrs. Hartung's Case, and could not be applied to it, and this was decided in face of the fact that it resulted in the discharge of a convicted murderess without any punishment at all. Judge DENIO, in delivering the opinion of the court, makes these excellent observations: 'It is highly probable that it was the intention of the legislature to extend favor, rather than increased severity, towards this convict and others in her situation; and it is quite likely that, had they been consulted, they would have preferred the application of this law to their cases, rather than that which existed when they committed the offences of which they were convicted. But the case cannot be determined upon such considerations. No one can be criminally punished in this country, except according to a law prescribed for his government by the sovereign authority, before the imputed offence was committed, and which existed as a law at that time. . . . No State shall pass any ex post facto law, is the mandate of the Constitution of the United States.' (Emphasis added.) This is reaffirmed by the same court in the cases of Shepherd v. People, 25 N. Y. 406; Green v. Shumway, 39 N. Y. 418; and In re Petty, 22 Rand. (Kan.) 477, the same thing is decided. In the case of State v. Keith, 63 N. C. 140, the supreme court of that state held that a law repealing a statute of general amnesty for offenses arising out of the rebellion was ex post facto and void, though both statutes were passed after the acts were committed with which defendant was charged. In the case of the State v. Sneed, 25 Tex. (Supp.) 66, the court held that, in a criminal case barred by the statute of limitations, a subsequent statute which enlarged the time necessary to create a bar was, as to that case, an ex post facto law, and it could not be supposed to be intended to apply to it. When, in answer to all this evidence of the tender regard for the rights of a person charged with crime under subsequent legislation affecting those rights, we are told that this very radical change in the law of Missouri to his disadvantage is not subject to the rule because it is a change, not in crimes, but in criminal procedure, we are led to inquire what that court meant by criminal procedure. The word 'procedure,' as a law term, is not well understood, and is not found at all in Bouvier's Law Dictionary, the best work of the kind in this country. Fortunately a distinguished writer on criminal law in America has adopted it as the title to a work of two volumes. Bishop, Crim. Proc. In his first chapter he undertakes to define what is meant by procedure. He says: 'Sec. 2. The term procedure is so broad in its signification that it is seldom employed in our books as a term of art. It includes in its meaning whatever is embraced by the three technical terms, 'pleading,' 'evidence,' and 'practice." And in defining 'practice,' in this sense, he says: 'The word means those legal rules which direct the course of proceeding to bring parties into the court and the course of the court after they are brought in;' and 'evidence,' he says, as part of procedure, 'signifies those rules of law whereby we determine what testimony is to be admitted and what rejected in each case, and what is the weight to be given to the testimony admitted.' It this be a just idea of what is intended by the word 'procedure,' as applied to a criminal case, it is obvious that a law which is one of procedure may be obnoxious as an ex post facto law, both by the decision in Calder v. Bull, 3 Dall. 386, and in Cummings v. Missouri, 4 Wall. 277, for in the former case this court held that 'any law which alters the legal rules of evidence, and receives less or different testimony than the law requires at the time of the commission of the offense in order to convict the offender,' is an ex post facto law; and in the latter, one of the reasons why the law was held to be ex post facto was that it changed the rule of evidence under which the party was punished. But it cannot be sustained without destroying the value of the constitutional provision that no law, however it may invade or modify the rights of a party charged with crime, is an ex post facto law within the constitutional provision, if it comes within either of these comprehensive branches of the law designated as 'pleading,' 'practice,' and 'evidence.' Can the law with regard to bail, to indictments, to grand juries, to the trial jury, all be changed by state legislation, after the offense committed, to the disadvantage of the prisoner, and not held to be ex post facto, because it relates to procedure, as it does according to Mr. Bishop? And can any substantial right which the law gave the defendant at the time to which his guilt relates be taken away from him by ex post facto legislation, because, in the use of a modern phrase, it is called a law of procedure? We think it cannot. Some light may be thrown upon this branch of the argument by recurrence to a few of the numerous decisions of the highest courts construing the associated phrase in the same sentence of the constitution which forbids the states to pass any law impairing the obligation of contracts. It has been held that this prohibition also relates exclusively to laws passed after the contract is made, and its force has been often sought to be evaded by the argument that laws are not forbidden which affect only the remedy, if they do not change the nature of the contract or act directly upon it. The analogy between this argument and the one concerning laws of procedure, in relation to the contiguous words of the constitution, is obvious. But while it has been held that a change of remedy made after the contract may be valid, it is only so when there is substituted an adequate and sufficient remedy by which the contract may be enforced, or where such remedy existed and remained unaffected by the new law. Tennessee v. Sneed, 96 U. S. 69; Antoni v. Greenhow, ante, 91. On this point it has been held that laws are void enacted after the date of the contract: (1) Which give the debtor a longer stay of execution after judgment. Blair v. Williams, 4 Litt. (Ky.) 35; McKinney v. Carroll, 5 Mon. 98. (2) Which require on a sale of his property under execution an appraisement, and a bid of two-thirds the value so ascertained. Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 How. 608; 4 Litt. 35; Sprott v. Reid, 3 G. Greene, 489. (3) Which allow a period of redemption after such sale. Lapsley v. Brashear, 4 Litt. 58; 7 Mon. (Ky.) 54; Cargill v. Power, 1 Mich. 369; Robinson v. Howe, 13 Wis. 341. (4) Which exempt from sale under judgment for the debt a larger amount of the debtor's property than was exempt when the debt was contracted. Edwards v. Kearney, 96 U. S. 59, and the cases there cited; Story, Comm. Const. § 1385. There are numerous similar decisions showing that a change of the law which hindered or delayed the creditor in the collection of his debt, though it related to the remedy or mode of procedure by which that debt was to be collected, impaired the obligation of the contract within the meaning of the constitution. Why are not the rights of life and liberty as sacred as the right of contract? Why should not the contiguous and associated words in the constitution, relating to retroactive laws, on these two subjects, be governed by the same rule of construction? And why should a law, equally injurious to the rights of the party concerned, be void in one case and not in the other, under the same circumstances? But it is said that at the time the prisoner pleaded guilty of the second degree of murder, and at the time he procured the reversal of the judgment of the criminal court on that plea, the new constitution was in force, and he was bound to know the effect of the change of the law on his case. We do not controvert the principle that he was bound to know and take notice of the law. But, as regards the effect of the plea and the judgment on it, the constitution of Missouri made no change. It still remained the law of Missouri, as it is the law of every state in the Union, that so long as the judgment rendered or that plea remained in force, or after it had been executed, the defendant was liable to no further prosecution for any charge found in that indictment. Such was the law when the crime was committed, such was the law when he pleaded guilty, such is the law now in Missouri, and everywhere else. So that, in pleading guilty under an agreement for 10 years' imprisonment, both he and the prosecuting attorney and the court all knew that the result would be an acquittal of all other charges but that of murder in the second degree. Did he waive or annul this acquittal by prosecuting his writ of error? Certainly not by that act, for if the judgment of the lower court sentencing him to 25 years' imprisonment had been affirmed, no one will assert that he could still have been tried for murder in the first degree. Nor was there anything else done by him to waive this acquittal. He refused to withdraw his plea of guilty. It was stricken out by order of the court against his protest. He refused then to plead not guilty, and the court in like manner, against his protest, ordered a general plea of not guilty to be filed. He refused to go to trial on that plea, and the court forced him to trial. The case rests then upon the proposition that, having an erroneous sentence rendered against him on the plea accepted by the court, he could only take the steps which the law allowed him to reverse that sentence at the hazard of subjecting himself to the punishment of death for another and a different offense of which he stood acquitted by the judgment of that court; that he prosecuted his legal right to a review of that sentence with a halter around his neck, when, if he succeed in reversing it, the same court could tighten it to strangulation, and if he failed, it did him no good. And this is precisely what has occurred. His reward for proving the sentence of the court of 25 years' imprisonment (not its judgment on his guilt) to be erroneous, is that he is now to be hanged, instead of imprisoned in the penitentiary. No such result could follow a writ of error before, and as to this effect the new constitution is clearly ex post facto. The whole error, which results in such a remarkable conclusion, arises from holding the provision of the new constitution applicable to this case, when the law is ex post facto and inapplicable to it. If Kring or his counsel were bound to know the law when they prosecuted the writ of error, they were bound to know it as we have expounded it. If they knew that by the words of the new constitution such a judgment of acquittal as he had when he undertook to reverse it would be no longer an acquittal after it was reversed, they also knew that, being as to his case an ex post facto law, it could have no such effect on that judgment. We are of opinion that any law passed after the commission of an offense which, in the language of WASHINGTON, in U. S. v. Hall, 'in relation to that offense, or its consequences, alters the situation of a party to his disadvantage,' is an ex post facto law; and in the language of DENIO, in Hartung v. People: 'No one can be criminally punished in this country, except according to a law prescribed for his government by the sovereign authority before the imputed offense was committed, and which existed as a law at the time.' Tested by these criteria, the provision of the constitution of Missouri which denies to plaintiff in error the benefit which the previous law gave him of acquittal of the charge of murder in the first degree, on conviction of murder in the second degree, is, as to his case, an ex post facto law within the meaning of the constitution of the United States, and for the error of the supreme court of Missouri, in holding otherwise, its judgment is reversed, and the case is remanded to it, with direction to reverse the judgment of the criminal court of St. Louis, and for such further proceedings as are not inconsistent with this opinion. MATTHEWS, J., dissenting. The chief justice, Mr. Justice BRADLEY, Mr. Justice GRAY, and myself are unable to concur in the judgment and opinion of the court in this case, and the importance of the question determined constrains us to state the grounds of our dissent. The material facts are these: The plaintiff in error, at March term, 1875, of the St. Louis criminal court, was indicted for murder in the first degree. On his arraignment he pleaded 'not guilty.' At the November term of the same year a trial was had, which resulted in a verdict of guilty of murder in the first degree, and a sentence of death. That judgment was reversed on appeal, and twice subsequently there were mistrials. On November 12, 1879, the defendant, by consent of the circuit attorney and leave of the court, withdrew his plea of not guilty and entered a plea of guilty of murder in the second degree. He was thereupon sentenced to imprisonment in the penitentiary for a term of 25 years. The prisoner then filed a motion to set aside this judgment and sentence, and to allow him to withdraw the plea of guilty of murder in the second degree, and to permit him 'to have his original plea of not guilty entered to record, to the end that he may have a trial upon the merits of his case before a jury.' In support of this motion reasons were assigned, in substance, that he had withdrawn his original plea of not guilty and entered the plea of guilty of murder in the second degree, upon the faith of an understanding previously had with the circuit attorney, representing the prosecution, that if he would do so the sentence should not exceed 10 years in the penitentiary, which* understanding was violated by the sentence complained of. The court overruled the motion, but upon appeal the judgment was reversed, on the ground alleged by the prisoner that he had been misled, and the cause was remanded for further proceedings. On receipt of this mandate, the trial court, the prisoner refusing to withdraw his plea of guilty of murder in the second degree and to enter a plea of not guilty, entertained the motion previously made by him, for refusing to grant which the judgment had thus been reversed, and granted it, setting aside the plea of guilty, and, the prisoner standing mute, ordered a plea of not guilty to be entered. On this plea a trial was had at October term, 1881, when the prisoner was found guilty of murder in the first degree and again sentenced to death. An appeal was prosecuted from this judgment, which, however, was affirmed by the supreme court of Missouri, and is brought here for examination by the present writ of error, on the ground that it has been rendered in violation of a right secured to the plaintiff in error by the constitution of the United States. The right which it is alleged has been violated is supposed to arise in this way. At the time of the commission of the offense, in 1875, it was well established as the law of Missouri, by the decisions of the supreme court of the state, that 'when a person is indicted for murder in the first degree, and is put upon his trial and convicted of murder in the second degree, and a new trial is ordered at his instance, he cannot legally be put upon his trial again for the charge of murder in the first degree; he can be put upon his trial only upon the charge of murder in the second degree.' State v. Ross, 29 Mo. 32; State v. Smith, 53 Mo. 139. And it is not denied that a plea of guilty of murder in the second degree, accepted by the state, would have been at that time equally an acquittal of the charge of murder in the first degree, having the same force as to future trials as a conviction of murder in the second degree, although the judgment should be reversed on the application of the prisoner. On November 30, 1875, the state of Missouri adopted a new constitution, which contained (section 23, art. 2) the provision that 'if judgment on a verdict of guilty be reversed for error in law, nothing herein contained shall prevent a new trial of the prisoner on a proper indictment, or according to correct principles of law.' In the case of State v. Sims, 71 Mo. 538, it was decided that this provision overthrows the rule laid down in the case of State v. Ross, ubi supra, and was 'equivalent to declaring that when such judgment is reversed for error at law, the trial had is to be regarded as a mistrial, and that the cause, when remanded, is put on the same footing as a new trial, as if the cause had been submitted to a jury, resulting in a mistrial by the discharge of the jury in consequence of their inability to agree on a verdict.' The rule thus introduced by the constitution of 1875 was the one applied in the trial of the prisoner, instead of that previously in force; and the contention is that to apply it in a case such as the present, where the alleged offense was committed prior to the adoption of the new constitution, is to give it operation as an ex post facto law, in violation of the prohibition of the constitution of the United States. In examining this proposition it must constantly be borne in mind that the plea of guilty of murder in the second degree, the legal effect of which, when admitted, is the precise subject of the question, was entered long after the new rule established by the constitution of Missouri took effect; that the prisoner himself moved to set it aside, and for leave to renew his plea of not guilty, on the ground that he had been misled into making his plea of guilty under circumstances that would make it operate as a fraud upon his rights, if it were permitted to stand; and that, because the court denied this motion, he made and prosecuted his appeal for a reversal of its judgment, in full view of the rule, then in force, of the application of which he now complains, which expressly declared what should be the effect of such a reversal. The classification of ex post facto laws first made by Mr. Justice CHASE, in Calder v. Bull, 3 Dall. 386-390, seems to have been generally accepted. It is as follows: '(1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action; (2) every law that aggravates a crime or makes it greater than it was when committed; (3) every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed; (4) every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender.' This definition was the basis of the opinion of the court in the cases of Cummings v. State, 4 Wall. 277, and Ex parte Garland, 4 Wall. 333, and was expressly relied on in the opinion of the dissenting judges, which says: 'This exposition of the nature of ex post facto laws has never been benied, nor has any court or any commentator on the constitution added to the classes of laws here set forth, as coming within that clause of the organic law.' 4 Wall. 391. Now, under which of these heads does the controverted rule of the Missouri constitution fall? It cannot be contended that it is embraced in either of the first three. If in any, it must be covered by the fourth. But what rule of evidence, existing at the time of the commission of the offense, is altered to the disadvantage of the prisoner? The answer made is this: that, at that time, an accepted plea of guilty of murder in the second degree was conclusive proof that the prisoner was not guilty of murder in the first degree, and that it was abrogated so as to deprive the prisoner of the benefit of it. But while that rule was in force the prisoner had no such evidence of which he could avail himself. How, then, has he been deprived of any benefit from it? He had not, during the period while the rule was in force, entered any plea of guilty of murder in the second degree, and no such plea had been admitted by the state. All that can be said is that if, while the rule was in force, he had entered such a plea with the consent of the state, its legal effect would have been as claimed, and by its change he has lost what advantage he would have had in such a contingency. But it does not follow that such a contingency would have happened. It was not within the power of the prisoner to bring it about, for it required the concurrence and consent of the state; and it cannot be assumed that, under such a rule and enough to say that, under a ruling of the court, a party might have enough to say that, under a ruling of the court, a party might have lost the benefit of certain evidence, if such evidence had existed. To predicate error in such a case, it must be shown that the party had evidence of which, in fact, he has been illegally deprived. Such a case would have been presented here, if the plea of guilty of murder in the second degree had been entered and accepted before the constitution of 1875 took effect, and while the old rule was in force. Then the law would have taken effect upon the transaction between the prisoner and the prosecution in the acceptance of his plea; the status of the prisoner would have been fixed and declared; he would have stood acquitted of record of the charge of murder in the first degree; and the new rule would have been an ex post facto law if it had made him liable to conviction and punishment for an offense of which by law he had been declared to be innocent. But, in the circumstances of the present case, the evidence, of which it is said the prisoner has been deprived, came into being after the law had been changed. It was evidence created by the law itself, for it consists simply in a technical inference; and the law in force when it was created necessarily determines its quality and effect. That law did not operate upon the offense to change its character; nor upon its punishment to aggravate it; nor upon the evidence which, according to the law in force at the time of its commission, was competent to prove or disprove it. It operated upon a transaction between the prisoner and the prosecution, which might or might not have taken place; which could not take place without mutual consent; and when it did take place that consent must be supposed to have been given by both with reference to the law as it then existed, and not with reference to a law which had then been repealed. It is the essential characteristic of an ex post facto law that it should operate retrospectively, so as to change the law in respect to an act or transaction already complete and past. Such is not the effect of the rule of the constitution of Missouri now in question. As has been shown, it does not, in any particular, affect the crime charged, either in its definition, punishment, or proof. It simply declares what shall be the legal effect, in the future, of acts and transactions thereafter taking place. It enacts that any future erroneous and unlawful conviction for a less offense, thereafter reversed on the application of the accused, shall be held for naught, to all intents and purposes, and shall not, after such reversal, operate as a technical acquittal of any higher grade of crime, for which there might have been a conviction under the same indictment. It imposes upon the prisoner no penalty or disability. It cannot affect the case of any individual, except upon his own request, for he must take the first step in its application. When he pleads guilty of murder in the second degree, he knows that its acceptance cannot operate as an acquittal of the higher offense. When he asks to have the conviction reversed, he understands that if his application is granted, the judgment must be set aside with the same effect as if it had never been rendered. It does not touch the substance or merits of his defense, and is in itself a sensible and just rule in criminal procedure. And, 'so far as mere modes of precedure are concerned,' says Judge COOLEY, (Const. Lim. 272,) 'a party has no more right in a criminal than in a civil action to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place. Remedies must always be under the control of the legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice, and heard only by the courts in existence when its facts arose. The legislature may abolish courts and create new ones, and it may prescribe altogether different modes of procedure in its discretion, though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime. Statutes giving the government additional challenges, and others which authorized the amendment of indictments, have been sustained and applied to past transactions, as doubtless would be any similar statute calculated merely to improve the remedy, and in its operation working no injustice to the defendant and depriving him of no substantial right.' Accordingly it was held by this court, in Gut v. State, 9 Wall. 35, in the language of Mr. Justice FIELD, delivering its opinion, that 'a law changing the place of trial from one county to another county in the same district, or even to a different district from that in which the offense was committed or the indictment found, is not an ex post facto law, though passed subsequent to the commission of the offense or the finding of the indictment.' And in the case of Ex parte McCardle, 7 Wall. 506, it was the unanimous decision of the court that it was competent for congress, in a case affecting personal liberty, to deprive the complaining party of the benefit of an appeal from the judgment of an inferior court, after his appeal had taken effect and while it was pending. It would have been equally competent for the constitution of Missouri to have declared that no appeal or writ of error should thereafter be allowed to reverse the judgment of the court of original jurisdiction in any pending criminal cause, which certainly would be giving a different, because irreversible, effect to that judgment from what such judgments would have had under the law in force when the offense was committed. If it be true, in the logic of the law, as it is in all its other applications, that the greater includes the less, then it was competent for that constitution to provide that, as to all judgments in criminal cases thereafter rendered, which should be reversed for error, on the appeal of the defendant, the effect of the reversal should be such as not to be a bar to a subsequent conviction for any crime described in the indictment; for that would have been to say, not that there shall be no appeal at all, but that if an appeal is taken its effect shall only be such as is prescribed in the law allowing it. In Com. v. Holley, 3 Gray, 458, SHAW, C. J., said: 'The object of the declaration of rights was to secure substantial privileges and benefits to parties criminally charged; not to require particular forms, except where they are necessary to the purposes of justice and fair dealing towards persons accused, so as to insure a full and fair trial.' And in Com. v. Hall, 97 Mass. 570, the court, speaking of a statutory provision authorizing the amendment of indictments, so as to allege a former conviction, the effect of which was to increase the penalty, said: 'We entertain no doubt of the constitutionality of this section, which promotes the ends of justice by taking away a purely technical objection, while it leaves the defendant fully and fairly informed of the nature of the charge against him, and affords him ample opportunity for interposing every meritorious defense. Technical and formal objections of this nature are not constitutional rights.' These observations, it is not necessary to point out, are entirely applicable to the present argument. Still stronger, and more to the point, is what was said by SHAW, C. J., in Jacquins v. Com. 9 Cush. 279, where it was held that a statute authorizing the supreme judicial court, on a writ of error, on account of error in the sentence, to render such judgment therein as should have been rendered, applied to past judgments, and was not, on that account, an ex post facto law. That eminent judge said: 'It was competent for the legislature to take away writs of error altogether in cases where the irregularities are formal and technical only, and to provide that no judgment should be reversed for such cause. It is more favorable to the party to provide that he may come into court upon the terms allowed by this statute than to exclude him altogether. This act operates like the act of limitations. Suppose an act was passed that no writ of error should be taken out after the lapse of a certain period. It is contended that such an act would be unconstitutional, on the ground that the right of the convict to have his sentence reversed upon certain conditions had once vested. But this argument overlooks entirely the well-settled distinction between rights and remedies.' Precisely the same distinction between laws ex post facto and those which merely affect the remedy, and are, therefore, applicable to the case of an offense previously committed, is well illustrated by the case of Ratzky v. People, 29 N. Y. 124. There the prisoner had been convicted of murder in the first degree; the offense was committed when the act of 1860 was is force, which prescribed the mode of punishment; he was sentenced, however, in accordance with the terms of an act passed in 1862, subsequently to the commission of the offense, and which prescribed a different mode of punishment. On this account the judgment was held to be erroneous and was reversed, on the ground that the act of 1862, applied to offenses previously committed, was ex post facto. But at the time of the commission of the offense, in 1861, it was the well-settled law of New York, as decided in Shepherd v. People, 25 N. Y. 406, that when a wrong judgment had been pronounced, although the trial and conviction were regular, the prisoner could not, on the reversal of judgment, be subject to another trial, but would be entitled to his discharge. But on April 24, 1863, after the prisoner had been tried and convicted, but before judgment and sentence were pronounced, an act of the legislature took effect, which provided that the appellate court should have power, upon any writ of error, when it should appear that the conviction had been legal and regular, to remit the record to the court in which such conviction had been had, to pass such sentence thereon as the appellate court should direct. But for the authority conferred by this act, the court of appeals stated that it would have had no power, upon reversal of the judgment of the supreme court, either to pronounce the appropriate judgment, or remit the record to the oyer and terminer to give such judgment; but, on the contrary, would have been obliged to have discharged him, the law not authorizing another trial. Nevertheless, the court of appeals gave effect to the act of 1863, reversed the judgment, and sent the record down with directions to sentence the prisoner to death, in accordance with the provisions of the act of 1860, holding that the act of 1863 was not an ex post facto law. And yet it deprived the prisoner of the benefit of a rule of law, in force at the time the offense was committed, viz., that if he should be erroneously sentenced, and the judgment should be reversed, he would be entitled to be discharged and forever after protected against further prosecution for the same offense, as well as against any second judgment upon the same verdict. This decision deserves particular consideration, for it involves the very question under discussion. At the time of the commission of his offense, and at the time of his trial and conviction, a rule of law in New York had been well established that upon a reversal of judgment in a capital case, for error in the sentence, the prisoner was entitled to be discharged, and his former conviction, notwithstanding the reversal, was a conclusive defense upon any subsequent trial for the same offense. After trial and conviction a statute was passed which abrogated that rule and declared that a subsequent reversal of judgment for error merely in the sentence should not have that effect, but that, even without a new trial, a new judgment might be entered upon the verdict. This gave to the verdict and to the subsequent proceeding an effect entirely different from what they would have had under the law as it stood at the time of the commission of the offense, and deprived the prisoner of the advantage of the rule then in force. After that statute took effect he prosecuted a writ of error and reversed the judgment for error in the sentence, and it was held that the effect of that reversal was determined by the law in force when it was rendered, and not by thelaw in U 'It would follow from these considerations, and the authority of the case of People v. Shepherd, 25 N. Y. 406, that a wrong judgment having been pronounced, although the trial and conviction were regular, this prisoner could not be subjected to another trial and would be entitled to his discharge. That would unquestionably be so but for the act of April 24, 1863. * * * In the present case that act became operative before the judgment and sentence were pronounced and given, and before the writ of error was prosecuted to this court. It was, therefore, in force when the writ of error in this case was prosecuted, and its provisions are applicable to the duty imposed upon this tribunal by virtue of that proceeding. * * * But for the authority conferred upon this court by that statute it would have had no power, upon reversal of the judgment of the supreme court, either to pronounce the appropriate judgment or remit the record to the oyer and terminer to give such judgment.' 'The remaining question is, whether the judgment should be reversed and the prisoner discharged, according to the former rule, or the record be remitted to the oyer and terminer to pass a legal sentence upon the conviction. This latter course is now authorized by statute. Laws 1863, c. 226, p. 406. The conviction was legal and the sentence only was erroneous. The only question is, whether the act, having been passed after the conviction, though before judgment was given in the supreme court, could be applied to the case. I am of opinion that it can be applied. The forms of judicial proceedings are under control of the legislature.' And the court accordingly, instead of ordering the prisoner to be discharged, according to the rule in force at the time the offense was committed, and even at the time of his trial and conviction, directed the record to be remitted to the court of oyer and terminer with instructions to sentence him to suffer death for the crime of which he had been convicted. The counterpart and complement of the decision in Ratzky's Case are found in Hartung v. People. There the prisoner had been convicted of murder and sentenced to death; but at the time the judgment was rendered the law in force at the time of the commission of the offense providing for its punishment had been repealed, and the repealing act substituted a different punishment. It was on this account adjudged to be an ex post facto law, and void, and the judgment was reversed. 22 N. Y. 95. Subsequently the repealing act was itself repealed, and the former act in force when the offense was committed was restored. Then the prisoner was again tried, having pleaded a former conviction, but was found guilty, and adjudged to suffer death in accordance with the law existing at the time the offense was committed. This judgment was thereupon reversed, and the prisoner ordered to be discharged, on the ground that the act restoring the law as it stood when the offense was committed was an ex post facto law, because at the time it was passed the prisoner had been adjudged to be legally free from punishment of any kind on account of her offense. 26 N. Y. 167. The very point of the decision was that while it was competent for the legislature to repeal the repealing act so that it could not thereafter be availed of, it could not destroy the effect of a judgment actually pronounced while that act was in force. It is manifest that if in that case the prisoner had not been tried at all until after the law had been thus twice changed, she could not have claimed to have had the vested interest in the first repealing act which was allowed to her in the judgment actually rendered when it was in force. It was because the subsequent law, if applied, would have changed the legal effect of that judgment, that it was adjudged to be an ex post facto law. It was precisely upon this principle that the supreme court of North Carolina proceeded in the case of State v. Keith, 63 N. C. 140. There the prisoner, in custody on a charge of murder, moved for a discharge, on the ground that his offense was within the provisions of the amnesty act of 1866-67. This was admitted to be the case, but the motion was opposed on the ground that the amnesty act had been repealed. It was held that the effect of the pardon was, so far as the state was concerned, to destroy and entirely efface the previous offense, as if it had never been committed; and that to give to the repeal of the amnesty act the effect, as claimed, of reviving the offense, would make it an ex post facto law, making criminal that which, when it took effect, was not so, and taking from the prisoner his vested right to immunity. But suppose in that case the provisions of the amnesty act had been conditional and not absolute, so that no one could plead its pardon unless he had taken certain formal preliminary steps to obtain the benefit of its terms, and that before the prisoner had done so the act had been repealed, could it be claimed that in that event he had obtained a vested right to immunity, and that its repeal operated as an ex post facto law? Clearly not. And, in reference to this case, it is also to be observed that the fact, the legal character of which was changed by the subsequent law, was the fact of pardon, and not a fact which existed at the time of the commission of the offense. The repealing act was ex post facto, because it had the effect to change the legal character of the facts as they existed at the time of its passage. In State v. Arlin, 39 N. H. 179, a prisoner was indicted for a robbery, which, at the time of its commission, was punishable by imprisonment for life, but by the same law he was entitled to have counsel assigned him by the government, process to compel the attendance of witnesses, and other similar privileges. A subsequent law mitigated the severity of the punishment and repealed the act giving these privileges. It was held that the act was not ex post facto, because it changed the punishment to the advantage of the prisoner, and that he was not entitled to the incidental benefits secured by the law in force when the offense was committed. The court remarked that by committing the offense the prisoner had not acquired a vested right to enjoy the privileges to which he would have been entitled if tried under the law subjecting him to imprisonment for life. The rule of law in Missouri, the benefit of which is claimed for the prisoner in this proceeding, notwithstanding its repeal by the constitution of the state before it could have been applied in his case, was established, not by statute, but by a series of judicial decisions of the supreme court of the state. Those decisions might at any time have been reversed by the same tribunal, and a new rule introduced, such as that actually declared by the constitution. In that event, could it be said, with any plausibility, that the latter decisions, reversing the law as previously understood, could not be applied to all subsequent proceedings in cases where, upon a plea of guilty of murder in the second degree thereafter entered and accepted, an erroneous judgment thereon had been reversed, notwithstanding, when the offense was committed, the prior decisions had been in force? Would the new rule, as introduced and applied by the later judicial decisions, be in violation of the prohibition of the constitution of the United States against ex post facto laws? But the constitution of Missouri has done no more than this. The nature and operation of the rule are not affected by any peculiarity in the authority which establishes it. If it is not objectionable as an ex post facto law, when introduced by judicial decision, it is because it is not so in its nature; and, if not, it does not become so when introduced by a legislative declaration. There are doubtless many matters of mere procedure which are of vital consequence; but in respect to them the power of congress, as to crimes against the United States, is restrained by positive and specific limitations, carefully inserted in the organic law, prohibiting unreasonable searches and seizures, and general warrants, providing that no one shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the military service; that no person shall, for the same offense, be twice put in jeopardy of life or limb, nor be compelled to testify against himself; that every accused person shall be secured in the right to a public trial by an impartial jury in a previously ascertained district, in which the alleged offense is charged to have been committed; to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. But these are limitations upon the legislative power of the United States, whether prospective or retrospective, and not upon that of the states; and although the constitutions of all the states, probably, have equivalent guaranties of individual rights, the violation of none of them by a state tribunal, under state legislation, could present a case for the exercise of supervisory jurisdiction by this court. The prohibition against bills of attainder is the only one of this class which applies to both the government of the United States and those of the states; and while a bill of attainder may be an ex post facto law, it is not necessarily so, as it may be merely a matter of procedure,—a trial by a legislative instead of a judicial body. But, in addition to these matters of procedure, which are specially protected against legislative change, either for the past or the future, there may be others, in which changes with a retrospective effect are forbidden by the prohibition against ex post facto laws. Such, we have already seen, would be laws which authorize conviction upon less evidence than was required at the time of the commission of the offense, or which altered, to the disadvantage of the accused, the nature and quantity of proof at that time required to substantiate a legal defense; or which, in other words, gave to the circumstances which constituted and attended the act, a legal signification more injurious to the accused than was attached to them by the law existing at the time of the transaction. It is doubtless quite true that it is difficult to draw the line in particular cases beyond which legislative power over remedies and procedure cannot pass without touching upon the substantial rights of the parties affected, as it is impossible to fix that boundary by any general words. The same difficulty is encountered, as the same principle applies, in determining, in civil cases, how far the legislature may modify the remedy without impairing or enlarging the obligation of contracts. Every case must be decided upon its own circumstances, as the question continually arises and requires an answer. But it is a familiar principle that, before rights derived under public laws have become vested in particular individuals, the state, for its own convenience and the public good, may amend or repeal the law without just cause of complaint. 'The power that authorizes or proposes to give,' said Mr. Justice WOODBURY in Merrill v. Sherburne, 1 N. H. 213, 'may always revoke before an interest is perfected in the donee.' Accordingly, the heir apparent loses no legal right, if, before descent cast, the law of descents is changed so as to shift the inheritance to another, however his expectations may be disappointed. And while it would be a violation of the constitutional maxim which forbids retrospective legislation inconsistent with vested rights, to deprive, by a repeal of statutes of limitation, a defendant of a defense which had become perfect while they were in force; yet if, before the bar had become complete, he should be deprived of an expected defense by an extension of time in which suit might be brought, he would have no just cause to object that he was compelled to meet the case of his adversary upon its merits. In respect to criminal offenses it is undoubtedly a maxim of natural justice, embodied in constitutional provisions, that the quality and consequences of an act shall be determined by the law in force when it is committed, and of which, therefore, the accused may be presumed to have knowledge, so that the definition of the offense, the character and degree of its punishment, and the amount and kind of evidence necessary to prove it, cannot be changed to the disadvantage of the party charged ex post facto. And this equally applies to, because it includes, the matters which, existing at the time and constituting part of the transaction, affect its character, and thus form grounds of mitigation or defense; for the accused is entitled to the benefit of all the circumstances that attended his conduct, according to their legal significance, as determined at the time. All these are incidents that belong to the substance of the thing charged as a crime, and therefore come within the saving which preserves the legal character of the principal fact. But matters of possible defense, which accrue under provisions of positive law, which are arbitrary and technical, introduced for public convenience or from motives of policy, which do not affect the substance of the accusation or defense, and form no part of the res gestae, are continually subject to the legislative will, unless, in the mean time, by an actual application to the particular case, the legal condition of the accused has been actually changed. His right to maintain that status, when it has become once vested, is beyond the reach of subsequent law. The present, as we have seen, is not such a case. The substance of the prisoner's defense, upon the merits, has not been touched; no vested right under the law had wrought a result upon his legal condition before its repeal. He is, therefore, in no position to invoke the constitutional prohibition which is, by the judgment of this court, now interposed between him and the crime of which he has been convicted. In our opinion the judgment of the supreme court of Missouri should be affirmed.