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130.US.263	In a suit in equity, brought by the United States to redeem a parcel of land in Kansas, from a mortgage, the defence of laches cannot be set up, although the bill was filed more than twelve years after the defendant obtained title to the land by purchasing it on a foreclosure sale under the mortgage, and more than thirteen years after the United States purchased the land on a sale on execution on a judgment obtained by it, after the mortgage was given, against the mortgagor, who still owned the land, the United States not having been a party to the foreclosure suit. The United States holds the title to the land for public purposes and not for private purposes, and holds in like manner the incidental right of redemption.	his is a bill in equity, filed in the circuit court of the United States for the district of Kansas, by the United States against the heirs at law of Polly Palmer and the heirs at law and administratrix of Moses McElroy, seeking to redeem a parcel of land known as lot 1, in block 104, in the city of Fort Scott, in the state of Kansas, from a claim made thereto by the Palmer heirs under a mortgage. The bill was originally filed November 28, 1884. After a demurrer had been put in to it by two of the defendants an amended bill was filed, on July 22, 1885. Some of the defendants interposed a general demurrer to the amended bill, and on a hearing the demurrer was, on December 14, 1885, sustained, and the bill was dismissed. From that decree the United States has appealed.* The material facts set forth in the amended bill are these: On the 16th of October, 1869, the United States recovered a judgment at law, in the district court of the United States for the district of Kansas, for $2,000, against Moses McElroy and Charles Bull. Two executions were issued thereon, and were returned unsatisfied. On the 7th of August, 1869, McElroy and his wife executed a mortgage for $3,500 to Polly Palmer, on lots 1 and 3, in said block No. 104. On the 30th of May, 1871, Polly Palmer commenced a suit in a state court of Kansas against McElroy and his wife to foreclose the mortgage, and, on October 4, 1871, obtained a judgment of foreclosure for $3,764.16, which ordered that the property be sold to satisfy the mortgage. It was sold, and purchased by Polly Palmer. The sale was confirmed by the court and, on January 4, 1872, a sheriff's deed for the property was made to her, which was duly recorded. At the time the foreclosure suit was commenced, the United States marshal had made a levy on said property under an execution issued on the judgment of the United States, and the said lots 1 and 3 had been advertised to be sold on June 6, 1871. On that day lot 1 was sold to the United States, and on October 16, 1871, the district court of the United States confirmed the sale, and ordered a deed to be made to the United States. In the foreclosure suit, the United States was not made a party, and did not appear. At the time that suit was commenced, the judgment of the United States was a lien on lots 1 and 3. Polly Palmer died in November, 1872, and McElroy died in 1881. On October 30, 1883, the United States received a deed for lot 1 from the marshal of the district, based on the sale of June 6, 1871, in accordance with the order of October 16, 1871, and has been ever since June 6, 1871, the owner of lot 1, with full right of possession thereof, subject only to the right of the heirs at law of Polly Palmer. The amount due to the estate of Polly Palmer on the mortgage of August 7, 1869, and on the judgment of foreclosure, has been paid. The bill alleges that the United States offers to pay the amount, if any, due on the mortgage, in order to redeem the property, waives an answer on oath, and prays that an account be taken of the amount due; that lot 3 be first subjected to its payment; that an account be taken of the rents and profits of lot 1, and, if they have been more than sufficient to satisfy the mortgage debt, the defendants be decreed to pay the excess to the United States; and that the United States be permitted to redeem lot 1, and the defendants be adjudged to deliver up its possession to the United States. The decision of the circuit court, reported in 25 Fed. Rep. 804, proceeded upon the ground that, as the government in this case came into a court of equity, claiming the same rights as a private individual, and the case did not involve any question of governmental right or duty, the ordinary rules controlling courts of equity as to laches should be enforced; and that, as the bill was filed more than 12 years after the sheriff's deed had been made to Polly Palmer, and more than 13 years after the sale on execution to the United States, the claim of the government was barred by its laches. This decision of the circuit court was made in December, 1885, prior to the decisions of this court in the cases of Van Brocklin v. State of Tennessee, 117 U. S. 151, 6 Sup. Ct. Rep. 670; U. S. v. Railway Co., 118 U. S. 120, 6 Sup. Ct. Rep. 1006; and U. S. v. Beebe, 127 U. S. 338, 8 Sup. Ct. Rep. 1083. These cases determine that the decree in the present case must be reversed. In Van Brocklin v. State of Tennessee, (page 158, 6 Sup. Ct. Rep. 674,) this court said: 'The United States do not and cannot hold property, as a monarch may, for private or personal purposes. All the property and revenues of the United States must be held and applied, as all taxes, duties, imposts, and excises must be laid and collected, 'to pay the debts and provide for the common defense and general welfare of the United States." In the present case, the United States holds the title to the property in question, as it holds all other property, for public purposes, and not for private purposes. So holding the title and the right of possession under their deed, it holds in the same manner, and for public purposes, the incidental right of redemption. In this view, the doctrine often laid down, and again enforced in U. S. v. Railway Co., applies to this case. It was there said (p. 125, 6 Sup. Ct. Rep. 1008:) 'It is settled beyond doubt or controversy—upon the foundation of the great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided—that the United States, asserting rights vested in them as a sovereign government, are not bound by any statute of limitations, unless congress has clearly manifested its intention that they should be so bound. Lindsey v. Miller, 6 Pet. 666; U. S. v. Knight, 14 Pet. 301, 315; Gibson v. Chouteau, 13 Wall. 92; U. S. v. Thompson, 98 U. S. 486; Fink v. O'Neil, 106 U. S. 272, 281,' 1 Sup. Ct. Rep. 325. This doctrine is applicable with equal force, not only to the question of a statute of limitations in a suit at law, but also to the question of laches in a suit in equity. In U. S. v. Beebe, (page 344, 8 Sup. Ct. Rep. 1086,) it was said: 'The principle that the United States are not bound by any statute of limitations, nor barred by any laches of their officers, however gross, in a suit brought by them as a sovereign government to enforce a public right or to assert a public interest, is established past all controversy or doubt.' These views entirely cover the present case. It was suggested in the decision of the court below, as a ground for applying to the United States the doctrine of laches, that the government was not made a party to the foreclosure suit because it could not have been made such party except at its own will, and that it would be a hardship to the other parties to this suit to allow the government to lie by for so many years, and then come into a court of equity to assert the rights sought to be maintained in this suit. It is a sufficient answer to this view to say that the principle we have announced has long been understood to be the rule applicable to the government, and that it rests with congress, and not with the courts, to modify or change the rule. The decree of the circuit court is reversed, and the case is remanded to that court, with a direction to take such further proceedings as may be according to law, and not inconsistent with this opinion.
75.US.557	1. A covenant in a lease giving to the lessee a right or option to purchase the premises leased at any time during the term, is in the nature of a continuing offer to sell. The offer thus made, if under seal, is regarded as made upon sufficient consideration, and therefore one from which the lessor is not at liberty to recede. When accepted by the lessee, a contract of sale is completed. 2. When a contract for the sale of real property is plain and certain in its terms and in its nature, and the circumstances attending its execution is free from objection, it is the usual practice of courts of equity to enforce its specific execution upon the application of the party who has complied with its stipulations on his part, or has seasonably and in good faith offered, and continues ready to comply with them. But it is not the invariablepractice. This form of relief is not a matter of absolute right to either party; but a matter resting in the discretion of the court, to be exercised upon a consideration of all the circumstances of each particular case. 3. In general the specific relief will be granted when it is apparent, from a view of all the circumstances of the particular case, that it will subserve the ends of justice; and it will be 'withheld when, from a like view, it appears that it will produce hardship or injustice to either of the parties. 4. Where specific execution which would work hardship when unconditionally performed, would work equity when decreed on conditions, it willt be decreed conditionally. 6 The kind of currency which a party offers in payment of a contract (which, in this case, consisted of notes of the United States, not equivalent at the time to gold or silver), is important, on a bill for specific performance, only in considering the good faith of his conduct. The condition of the currency in April, 1864, and the general use of notes of the United States at that time, repel any imputation of bad faith in tendering such notes instead of coin in satisfaction of a contract.. 6 Where a party is entitled to a specific performance of a contract upon the payment of certain sums, and there is uncertainty as to the amount of such sums, he may apply by bill for such specific performance, and submit to the court the question of amount which he should pay. 7. Fluctuations in the value of property contracted for between the date of the contract, and the time when execution of the contract is demanded, where the contract was when made a fair one, and in its attendant circumstances unobjectionable, are not allowed to prevent a specific enforcement of the contract. 8. The general rule is that the parties to the contract are the only proper parties to the suit for its performance. Hence the assignment by the complainant, prior to his bill, of a partial interest in the entire contract is no defence to the bill for such performance. 9. Where a party, prior to filing a bill for specific performance of a contract for the sale of land, had sent to the other side for examination, and in professed purpose of execution of the contract, the draft of a mortgage which he is ready, on a conveyance being made, to execute, it is no defence to the bill, if the defendant have wholly refused to execute a deed, that the draft is not in such a form as respected parties and the term of years which the security bad to run, as the vendor was bound to accept, especially where such vendor, in returning the draft, had not stated in what particulars he was dissatisfied with the draft. 10. *When parties have reduced their contracts to writing, conversations controlling or changing their stipulations are, in the absence of fraud, no more received in a court of equity than in a court of law. 11. In this case, without expressing an opinion upon the constitutionality of the provision of the act of Congress which makes United States notes a legal tender for private debts, nor whether, if constitutional, the provision is to be limited in its application to contracts made subsequent to the passage of the act, the court refused to decree a conveyance of real estate, on the tender in such notes, where the estate had greatly risen in value, where at the time of the contract gold and silver coin were the only lawful money of the United States, and where it was impossible to suppose that the parties when making their contract-which was eight years before the notes were authorized-contemplated a substitution of such notes (when tendered much depreciated), for coin ; but did decree a specific execution, upon the payment in coin of the price originally agreed on, with interest, in coin also.	The covenant in the lease giving the right or option to purchase the premises was in the nature of a continuing offer to sell. It was a proposition extending through the period of ten years, and being under seal must be regarded as made upon a sufficient consideration, and, therefore, one from which the defendant was not at liberty to recede. When accepted by the complainant by his notice to the defendant, a contract of sale between the parties was completed.2 This contract is plain and certain in its terms, and in its nature and in the circumstances attending its execution appears to be free from objection. The price stipulated for the property was a fair one. At the time its market value was under fifteen thousand dollars, and a greater increase than one-half in value during the period of ten years could not then have been reasonably anticipated. When a contract is of this character it is the usual practice of courts of equity to enforce its specific execution upon the application of the party who has complied with its stipulations on his part, or has seasonably and in good faith offered, and continues ready to comply with them. But it is not the invariable practice. This form of relief is not a matter of absolute right to either party; it is a matter resting in the discretion of the court, to be exercised upon a consideration of all the circumstances of each particular case. The jurisdiction, said Lord Erskine,3 'is not compulsory upon the court, but the subject of discretion. The question is not what the court must do, but what it may do under [the] circumstances, either exercising the jurisdiction by granting the specific performance or abstaining from it.' And long previous to him Lord Hardwicke and other eminent equity judges of England had, in a great variety of cases, asserted the same discretionary power of the court. In Joynes v. Statham,4 Lord Hardwicke said: 'The constant doctrine of this court is, that it is in their discretion, whether in such a bill they will decree a specific performance or leave the plaintiff to his remedy at law.' And in Underwood v. Hitchcox5 the same great judge said, in refusing to enforce a contract: 'The rule of equity in carrying agreements into specific performance is well known, and the court is not obliged to decree every agreement entered into, though for valuable consideration, in strictness of law, it depending on the circumstances.' Later jurists, both in England and in the United States, have reiterated the same doctrine. Chancellor Kent, in Seymour v. Delancy,6 upon an extended review of the authorities on the subject, declares it to be a settled principle that a specific performance of a contract of sale is not a matter of course, but rests entirely in the discretion of the court upon a view of all the circumstances; and Chancellor Bates, of Delaware, in Godwin v. Collins, recently decided, upon a very full consideration of the adjudged cases, says, that a patient examination of the whole course of decisions on this subject has left with him 'no doubt that, as a matter of judicial history, such a discretion has always been exercised in administering this branch of equity juriprudence.' It is true the cases cited, in which the discretion of the court is asserted, arose upon contracts in which there existed some inequality or unfairness in the terms, by reason of which injustice would have followed a specific performance. But the same discretion is exercised where the contract if fair in its terms, if the enforcement, from subsequent events, or even from collateral circumstances, would work hardship or injustice to either of the parties. In the case of the City of London v. Nash,7 the defendant, a lessee, had covenanted to rebuild some houses, but, instead of doing this, he rebuilt only two of them, and repaid the others. On a bill by the city for a specific performance Lord Hardwicke held that the covenant was one which the court could specifically enforce; but said, 'the most material objection for the defendant, and which has weight with me, is that the court is not obliged to decree a specific performance, and will not when it would be a hardship, as it would be here upon the defendant to oblige him, after having very largely repaired the houses, to pull them down and rebuild them.' In Faine v. Brown,8 similar hardship, flowing from the specific execution of a contract, was made the ground for refusing the decree prayed. In that case the defendant was the owner of a small estate, devised to him on condition that if he sold it within twenty-five years one-half of the purchasemoney should go to his brother. Having contracted to sell the property, and refusing to carry out the contract under the pretence that he was intoxicated at the time, a bill was filed to enforce its specific execution, but Lord Hardwicke is reported to have said that, without regard to the other circumstances, the hardship alone of losing half the purchase-money, if the contract was carried into execution, was sufficient to determine the discretion of the court not to interfere, but to leave the parties to the law. The discretion which may be exercised in this cleass of cases is not an arbitrary or capricious one, depending upon the mere pleasure of the court, but one which is controlled by the established doctrines and settled principles of equity. No positive rule can be laid down by which the action of the court can be determined in all cases. In general it may be said that the specific relief will be granted when it is apparent, from a view of all the circumstances of the particular case, that it will subserve the ends of justice; and that it will be withheld when, from a like view, it appears that it will produce hardship or injustice to either of the parties. It is not sufficient, as shown by the cases cited, to call forth the equitable interposition of the court, that the legal obligation under the contracts to do the specific thing desired may be perfect. It must also appear that the specific enforcement will work no hardship or injustice, for if that result would follow, the court will leave the parties to their remedies at law, unless the granting of the specific relief can be accompanied with conditions which will obviate that result. If that result can be thus obviated, a specific performance will generally in such cases be decreed conditionally. It is the advantage of a court of equity, as observed by Lord Redesdale in Davis v. Hone,9 that it can modify the demands of parties according to justice, and where, as in that case, it would be inequitable, from a change of circumstances, to enforce a contract specifically, it may refuse its decree unless the party will consent to a conscientious modification of the contract, or, what would generally amount to the same thing, take a decree upon condition of doing or relinquishing certain things to the other party. In the present case objection is taken to the action of the complainant in offering, in payment of the first instalment stipulated, notes of the United States. It was insisted by the defendant at the time, and it is contended by his counsel now, that the covenant in the lease required payment for the property to be made in gold. The covenant does not in terms specify gold as the currency in which payment is to be made; but gold, it is said, must have been in the contemplation of the parties, as no other currency, except for small amounts, which could be discharged in silver, was at the time recognized by law as a legal tender for private debts. Although the contract in this case was not completed until the proposition of the defendant was accepted in April, 1864, after the passage of the act of Congress making notes of the United States a legal tender for private debts, yet as the proposition containing the terms of the contract was previously made, the contract itself must be construed as if it had been the concluded to take effect subsequently. It is not our intention to express any opinion upon the constitutionality of the provision of the act of Congress, which makes the notes of the United States a legal tender for private debts, nor whether, if constitutional, the provision is to be limited in its application to contracts, made subsequent to the passage of the act.10 These questions are the subject of special consideration in other cases, and their solution is not required for the determination of the case before us. In the view we take of the case, it is immaterial whether the constitutionality of the provision be affirmed or denied. The relief which the complainant seeks rests, as already stated, in the sound discretion of the court; and, if granted, it may be accompanied with such conditions as will prevent hardship and insure justice to the defendant. The suit itself is an appeal to the equitable jurisdiction of the court, and, in asking what is equitable to himself, the complainant necessarily submits himself to the judgment of the court, to do what it shall adjudge to be equitable to the defendant. The kind of currency which the complainant offered, is only important in considering the good faith of his conduct. A party does not forfeit his rights to the interposition of a court of equity to enforce a specific performance of a contract, if he seasonably and in good faith offers to comply, and continues ready to comply, with its stipulations on his part, although he may err in estimating the extent of his obligation. It is only in courts of law that literal and exact performance is required. The condition of the currency at the time reples and imputation of bad faith in the action of the complainant. The act of Congress had declared the notes of the United States to be a legal tender for all debts, without in terms, making any distinction between debts contracted before, and those contracted after its passage. Gold had almost entirely disappeared from circulation. The community at large used the notes of the United States in the discharge of all debts. They constituted, in fact, almost the entire currency of the country in 1964. They were received and paid out by the government; and the validity of the act declaring them a legal tender had been sustained by nearly every State court before which the question had been raised. The defendant, it is true, insisted upon his right to payment in gold, but before the expiration of the period prescribed for the completion of the purchase, he left the city of Washington, and thus cut off the possibility of any other tender than the one made within that period. In the presence of this difficulty, respecting the mode of payment, which could not be obviated, by reason of the absence of the defendant, the complainant filed his bill, in which he states the question which had arisen between them, and invokes the aid of the court in the matter, offering specifically to perform the contract on his part according to its true intent and meaning. He thus placed himself promptly and fairly before the court, expressing a willingness to do whatever it should adjudge he ought in equity and conscience to do in the execution of the contract. Nothing further could have been reasonably required of him under the circumstances, even if we should assume that the act of Congress, making the notes of the United States a legal tender, does not apply to debts created before its passage, or, if applicable to such debts, is, to that extent, unconstitutional and void. In the case of Chesterman v. Mann,11 it was held by the Court of Chancery of England, that were an underlessee had a covenant for the renewal of his lease, upon paying to his lessor a fair proportion of the fines and expenses to which the lessor might be subjected in obtaining a renewal of his own term from the superior landlord, and of any increased rent upon such renewal, and there was a difference between the parties as to the amount to be paid by the underlessee, he might apply for a specific performance of the covenant, and submit to the court the amount to be paid. So here in this case, the complainant applies for a specific performance, and submits the amount to be paid by him to the judgment of the court. We proceed to consider whether any other circumstances have ariven since the covenant in the lease was made, which renders the enforcement of the contract of sale, subsequently completed between the parties, inequitable. Such circumstances are asserted to have arisen in two particulars; first, in the greatly increased value of the property; and second, in the transfer of a moiety of the complainant's original interest to his brother. It is true, the property has greatly increased in value since April, 1854. Some increase was anticipated by the parties, for the covenant exacts, in case of the lessee's election to purchase, the payment of one-half more than its then estimated value. If the actual increase has exceeded the estimate then made, that circumstance furnishes no ground for interference with the arrangement of the parties. The question, in such cases, always is, was the contract, at the time it was made, a reasonable and fair one? If such were the fact, the parties are considered as having taken upon themselves the risk of subsequent fluctuations in the value of the property, and such fluctuations are not allowed to prevent its specific enforcement.12 Here the contract, as already stated, was, when made, a fair one, and in all its attendant circumstances, free from objection. The rent reserved largely exceeded the rent then paid, and the sum stipulated for the property largely exceeded its then market value. The transfer, by the complainant to his brother, of one-half interest in the lease, assuming now, for the purpose of the argument, that there is, in the record, evidence, which we can notice, of such transfer, in no respect affects the obligation of the defendant, or impairs the right of the complainant to the enforcement of the contract. The brother is no party to the contract, and any partial interest he may have acquired therein, the defendant was not bound to notice. The owners of partial interests in contracts for land, acquired subsequent to their execution, are not necessary parties to bills for their enforcement. The original parties on one side are not to be mixed up in controversies between the parties on the other side, in which they have no concern. If the entire contract had been assigned to the brother, so that he had become substituted in the place of the complainant, the case would have been different. In that event, the brother might have filed the bill, and insisted upon being treated as representing the vendee. The general rule is, that the parties to the contract are the only proper parties to the suit for its performance, and, except in the case of an assignment of the entire contract, there must be some special circumstances to authorize a departure from the rule. The court, says Chancellor Cottenham, in Tasher v. Small,13 'assumes jurisdiction in cases of specific performance of contracts, because a court of law, giving damages only for the non-performance of the contract, in many cases, does not afford an adequate remedy. But in equity, as well as at law, the contract constitutes the right, and regulates the liabilities of the parties; and the object of both proceedings is to place the party complaining, as nearly as possible, in the same situation as the defendant had agreed that he should be placed in. It is obvious, that persons, strangers to the contract, and, therefore, neither entitled to the rights nor subject to the liabilities which arise out of it, are as much strangers to a proceeding to enforce the execution of it as they are to a proceeding to recover damages for the breach of it.' When the complainant has received his deed from the defendant, the brother may claim from him a conveyance of an interest in the premises, if he have a valid contract for such interest, and enforce such conveyance by suit; but that is a matter with which the defendant has no concern. It seems that the draft of the trust deed, to secure the deferred payments, sent to the defendant for examination, was prepared for execution by the complainant alone, and contained a stipulation that he might, if he should so elect, pay off the deferred payments at earlier dates than those mentioned in the covenant in the lease; and it is objected to the complainant's right to a specific performance, that the trust deed was not drawn to be executed jointly by him and his brother, and that it contained this stipulation. A short answer to this objection is found in the fact, that the parties had disagreed in relation to the payment to be made, and until the disagreement ceased no deeds were required. It is admitted that the form of the trust deed was not such a one as the defendant was bound to receive, but as it was sent to him for examination, good faith and fair dealing required him to indicate in what particulars it was defective, or with which clauses he was dissatisfied. Whether it was the duty of the complainant or defendant to prepare the trust deed, according to the usage prevailing in Washington, is not entirely clear from the evidence. There is testimony both ways. The true rule, independent of any usage on the subject, would seem to be that the party who is to execute and deliver a deed should prepare it. It is, however, immaterial for this case, what rule obtains in Washington. Until the purchase-money was accepted, there was no occasion to prepare any instrument for execution. So long as that was refused the preparation of a trust deed was a work of supererogation. Besides, the execution of the trust deed by the complainant was to be simultaneous with the execution of a conveyance by the defendant. The two were to be concurrent acts; and if the complainant was to prepare one of them, the defendant was to prepare the other, and it is not pretended that the defendant acted in the matter at all. The objection to the trust deed, founded upon the omission of the name of the complainant's brother as a co-grantor, does not merit consideration. All that the defendant had to do was to see that he got a trust deed, as security for the deferred payments, from the party to whom he transferred the title. The defendant states in his testimony that when the lease was executed he objected to the stipulation for a sale of the premises, and that the defendant told him that it should go for nothing. And it has been argued by counsel that this evidence should control the terms of the covenant. The answer to the position taken is brief and decisive. First, nothing of the kind is averred in the answer; second, the testimony of the defendant in this particular is distinctly contradicted by that of the complainant, and is inconsistent with the attendant circumstances; and third, the evidence is inadmissible. When parties have reduced their contracts to writing, conversations controlling or changing their stipulations are, in the absence of fraud, no more received in a court of equity than in a court of law. Upon a full consideration of the positions of the defendant we perceive none which should preclude the complainant from claiming a specific perpormance of the contract. The only question remaining is, upon what terms shall the decree be made? and upon this we have no doubt. The parties, at the time the proposition to sell, embodied in the covenant of the lease, was made, had reference to the currency then recognized by law as a legal tender, which consisted only of gold and silver coin. It was for a specific number of dollars of that character that the offer to sell was made, and it strikes one at once as inequitable to compel a transfer of the property for notes, worth when tendered in the market only a little more than one-half of the stipulated price. Such a substitution of notes for coin could not have been in the possible expectation of the parties. Nor is it reasonable to suppose, if it had been, that the covenant would ever have been inserted in the lease without some provision against the substitution. The complainant must, therefore, take his decree upon payment of the stipulated price in gold and silver coin. Whilst he seeks equity he must do equity. The decree of the court below will, therefore, be REVERSED, and the cause remanded with directions to enter a decree for the execution, by the defendant to the complainant, of a conveyance of the premises with warranty, subject to the yearly ground-rent specified in the covenant in the lease, upon the payment by the latter of the instalments past due, with legal interest thereon, in gold and silver coin of the United States, and upon the execution of a trust deed of the premises to the defendant as security for the payment of the remaining instalments as they respectively become due, with legal interest thereon, in like coin; the amounts to be paid and secured to be stated, and the form of the deeds to be settled, by a master; the costs to be paid by the complainant. The CHIEF JUSTICE with NELSON, J., concurred in the conclusion as above announced—that the complainant was entitled to specific performance on payment of the price of the land in gold and silver coin—but expressed their inability to yield their assent to the argument by which, in this case, it was supported.
129.US.141	Under the authority conferred upon Congress by § 8, Article I, of the Constitution, "to make all laws which shall be necessary or proper for carrymg into execution" the power "to exercise exclusive legislation in all cases whatsoever over" the District of Columbia, Congress may constitute the District "a body corporate for municipal purposes," but can only authorize it to exercise municipal powers. The Act of the Legislative Assembly of the District of Columbia of August 23, 1871, as amended June 20, 1872, relating to license taxes on persons engaging in trade, business or profession within the District, was intended to be a regulation of a purely mumcipal character; but nevertheless the provision in clause 3, of § 21, which required commercial agents, engaged in dffering merchandise for sale by sample, to take out and pay for such a license, is a regulation of interstate commerce, so far as applicable to persons soliciting the sale of goods on behalf of individuals or firms doing business outside of the District, and it was not i-ithin the constitutional power of Congress to delegate to that legislature authority to enact a clause with such a provision, nor did it in fact do so in a grant of power for municipal purposes. Robbins v. Shelby County Taxing District, 120 U. S. 489, and Asher v Texas, 128 U. S. 129, affirmed. The repeal or modification by Congress of clauses in a legislative act of the District of Columbia, which are separable and separably operative, is no ratification of another clause in it, equally separable and separably operative, which it -was beyond the delegated or constitutional power of the Legislature of the District to enact.	It is a cardinal principle of our system of government, that local affairs shall be managed by local authorities, and general affairs by the central authority; and hence, while the rule is also fundamental that the power to make laws cannot be delegated, the creation of municipalities exercising local self-government has never been held to trench upon that rule. Such legislation is not regarded as a transfer of general legislative power, but rather as the grant of the authority to prescribe local regulations, according to immemorial practice, subject, of course, to the interposition of the superior in cases of necessity. Congress has express power 'to exercise exclusive legislation in all cases whatsoever' over the District of Columbia, thus possessing the combined powers of a general and of a state government in all cases where legislation is possible. But, as the repository of the legislative power of the United States, congress, in creating the District of Columbia 'a body corporate for municipal purposes,' could only authorize it to exercise municipal powers, and this is all that congress attempted to do. The act of the legislative assembly under which Hennick was convicted, imposed, as stated in its title, 'a license on trades, business, and professions practiced or carried on in the District of Columbia,' and required by clause 3 of section 21, among other persons in trade, commercial agents, whose business it was to offer merchandise for sale by sample, to take out and pay for such license. This provision was manifestly regarded as a regulation of a purely municipal character, as is perfectly obvious, upon the principle of noscitur a sociis, if the clause be taken, as it should be, in connection with the other clauses and parts of the act. But it is indistinguishable from that held void in Robbins v. Taxing Dist., 120 U. S. 489, 7 Sup. Ct. Rep. 592, and Asher v. Texas, 128 U. S. 129, ante, 1, as being a regulation of interstate commerce, so far as applicable to persons soliciting, as Hennick was, the sale of goods on behalf of individuals or firms doing business outside the District. The conclusions announced in the case of Robbins were that the power granted to congress to regulate commerce is necessarily exclusive whenever the subjects of it are national or admit only of one uniform system or plan of regulation throughout the country, and in such case the failure of congress to make express regulations is equivalent to indicating its will that the subject shall be left free; that in the matter of interstate commerce the United States are but one country, and are and must be subject to one system of regulations, and not to a multitude of systems; and that a state statute requiring persons soliciting the sale of goods on behalf of individuals or firms doing business in another state to pay license fees for permission to do so, is, in the absence of congressional action, a regulation of commerce in violation of the constitution. The business referred to is thus definitely assigned to that class of subjects which calls for uniform rules and national legislation, and is excluded from that class which can be best regulated by rules and provisions suggested by the varying circumstances of different localities, and limited in their operation to such localities respectively. Cooley v. Board, 12 How. 299; Gilman v. Philadelphia, 3 Wall. 713. It falls, therefore, within the domain of the great, distinct, substantive power to regulate commerce, the exercise of which cannot be treated as a mere matter of local concern and committed to those immediately interested in the affairs of a particular locality. It is forcibly argued that it is beyond the power of congress to pass a law of the character in question solely for the District of Columbia, because whenever congress acts upon the subject the regulations it establishes must constitute a system applicable to the whole country, but the disposition of this case calls for no expression of opinion upon that point. In our judgment congress, for the reasons given, could not have delegated the power to enact the third clause of the twenty-first section of the act of assembly, construed to include business agents such as Hennick, and there is nothing in this record to justify the assumption that it endeavored to do so, for the powers granted to the District were municipal merely; and although by several acts congress repealed or modified parts of this particular by-law, these parts were separably operative, and such as were within the scope of municipal action, so that this congressional legislation cannot be resorted to as ratifying the objectionable clause, irrespective of the inability to ratify that which could not originally have been authorized. The judgment of the supreme court of the District is affirmed. I do not find myself able to agree with the court in its judgment in this case. The act of congress creating a territorial government for the District of Columbia declared that the legislative power of the District should 'extend to all rightful subjects of legislation within said District;' which undoubtedly was intended to authorize the District to exercise the usual municipal powers. The act of the legislative assembly of the District, under which Hennick was convicted, imposed 'a license on trades, business, and professions, practiced or carried on in the District of Columbia,' and a penalty on all persons engaging in such trades, business, or profession without obtaining that license. As the court says in its opinion, this was 'manifestly regarded as a regulation of a purely municipal character.' The taxing of persons engaged in the business of selling by sample, commonly called 'drummers,' is one of this class, and the only thing urged against the validity of this law is that it is a regulation of interstate commerce, and, therefore, an exercise of a power which rests exclusively in congress. I pass the question, which is a very important one, whether this act of the legislature of the District of Columbia, being one exercised under the power conferred on it by congress, and coming, as I think, strictly within the limit of the power thus conferred, is not, so far as this question is concerned, sustained by the authority of congress itself, and is substantially the action of that body. The cases of Robbins v. Taxing Dist., 120 U. S. 489, 7 Sup. Ct. Rep. 592, and Asher v. Texas, 128 U. S. 129, ante, 1, hold the regulations requiring drummers to be licensed to be regulations of commerce, and invasions of the power conferred upon congress on that subject by the constitution of the United States. In those cases I concurred in the judgment, because, as applied to commerce between citizens of one state and those of another state, it was a regulation of interstate commerce, or, in the language of the constitution, of commerce 'among the several states;' being a prosecution of a citizen of a state other than Tennessee, in the first case, for selling goods without a license to citizens of Tennessee, and in the other case to citizens of Texas. But the constitutional provision is not that congress shall have power to regulate all commerce. It has been repeatedly held that there is a commerce entirely within a state, and among its own citizens, which congress has no power to regulate. The language of the constitutional provision points out three distinct classes of cases in which congress may regulate commerce, and no others. The language is that 'congress shall have power * * * to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.' Unless the act for which Hennick was prosecuted in this case was commerce with a foreign nation, among the several states, or with an Indian tribe, it is not an act over which the congress of the United States had any exclusive power of regulation. Commerce among the several states, as was early held by this court in Gibbons v. Ogden, 6 Wheat. 448, means commerce between citizens of the several states, and had no reference to transactions by a state, as such, with another state, in their corporate or public capacities. Indeed, it would be of very little value if that was the limitation or the meaning to be placed upon it. I take it for granted, therefore, that its practical utility is in the power to regulate commerce between the citizens of the different states. Commerce between a citizen of Baltimore, which Hennick is alleged to be in the prosecution in this case, and citizens of Washington, or of the District of Columbia, is not commerce 'among the several states,' and is not commerce between citizens of different states, in any sense. Commerce by a citizen of one state, in order to come within the constitutional provision, must be commerce with a citizen of another state; and where one of the parties is a citizen of a territory, or of the District of Columbia, or of any other place out of a state of the Union, it is not commerce among the citizens of the several states. As the license law under which Hennick was prosecuted made it necessary for him to take out a license to do his business in the city of Washington, or the District of Columbia, which was not a state, nor a foreign nation, nor within the domain of an Indian tribe, the act upon the subject does not infringe the constitution of the United States. For these reasons I dissent from the judgment of the court.
129.US.294	The second claim of reissued letters patent No. 6080, granted to James H. lattee, October 6, 1874, for improvements in cultivators, changes the first claim of the original patent, (1), by omitting the plates B, and (2) by the addition of the direct draft; and thus substantially enlarges the invention, and consequently is invalid. The machines manufactured by the defendants do not infringe letters patent No. 174,684, granted to Thomas W Kendall, March 14, 1876, for improvements in cultivators. Letters patent No. 187,899, granted to Henry H. Pattee, February 27 1877 for improvements in cultivators, embrace nothing that is not old, and nothing that is patentable, -that is, which involves invention rather than mechanical skill.	This is an appeal from a decree of the circuit court of the United States for the Eastern district of Missouri, dismissing appellant's bill of complaint. The bill charges appellees with infringement of the second claim of reissue letters patent No. 6,080, dated October 6, 1874, which is a reissue of original patent No. 124,218, to J. H. Pattee, dated March 5, 1872; of the first and second claims of original patent No. 174,684, granted Thomas W. Kendall, March 14, 1876; and of original patent No. 187,899, granted Henry H. Pattee, February 27, 1877,—all for improvements in cultivators. Appellee is an Illinois corporation, having a branch house in St. Louis, selling, among other things, cultivators manufactured by B. D. Buford & Co., at Rock Island, Ill., which are the alleged infringing machines. The opinion of the circuit court was as follows: 'Reissued patent 6,080, of 1874, second claim of which is under consideration, has, as to that claim, expanded the original beyond legal limits. Therefore said reissued patent is void to the extent claimed, wherein the defendant is alleged to have infringed. Second, as to the Kendall patent No. 174,684, there is no infringement. Third, as to the Pattee patent of 1877, No. 187,899, said patent is void; there being no novelty of invention therein that is patentable.' 23 Fed. Rep. 801. The second specification of the original Pattee patent, No. 124,218, states that the invention consists 'in pivoting the wheels to the axle in such manner that the wheels may either one be advanced forward of the other, throwing the axle diagonal with the line of progression, while the wheels preserve the same relative position to the line of progression.' The second specification of the reissue reads as follows: 'It consists in hinging the ends of the axle to plates, to which the draught animals are attached, and which are supported on wheels in such manner that the wheels are retained in the line of progression of the machine by the draught of the animals, and may either one be advanced forward of the other, throwing the axle diagonal with the line of progression, while the wheels preserve the same relative position to the said line of progression.' The fourth specification of the original is: 'It consists in the peculiar construction of the hitching device, allowing the draught animals to advance or recede, the one ahead or in the rear of the other, without influencing the plowbeams to the extent of the variation made by the said animals, all as hereinafter fully described.' The sixth specification of the reissue is: 'It consists in the arrangement of a hitching device with the draught-plates, which allow the draught animals to advance or recede, the one ahead or in near of the other, without influencing the plow-beams to the extent of the variation made by the said animals, all as hereinafter fully described.' The description of the accompanying drawings is given in the original and in the reissue, thus: Original. 'A is the axle, bowed or elevated at its central part. B, B, are plates secured to the ends of the axle, A. The ends of the plates, B, B, are turned outward, forming snugs, b, b, b, b, b 1 C, C, are triangular shaped draught-plates, from which project snugs, c, c, c, c, corresponding with the snugs, b, b, b, b. D, D, are pins or bolts, passing through holes in the snugs, c, c, and b, b, and thereby pivoting the plates, C, C, to the axle, A. E, E, are the wheels. F, F, are the wheel-spindles, their inner ends shouldered, threaded, and secured in slots, e, e, in the lower ends of the plates, C, C, by nuts, f. f. G, G, are eveners, pivoted near their centers in the forward ends of the plates, C, C. H, H, are bars, their forward ends pivoted to the inner ends of the eveners, G, G, and their rearward ends nivoted to the snugs, b1, b1, I, I, are hooks on the outer ends of the eveners, G, G, to which the draught animals are attached.'Reissue. 'A represents the axle, formed as shown in the drawings, of an elevated central part, A, vertical side portions, A1, A1, and horizontal projections, a, a, from each of the vertical side portions, A1. B, B, are draught-plates, with projecting forward ends, b, to which the draught animals may be attached direct or by any suitable device, and with an enlarged rear end, from which project lugs, b 1 projections, a, a, of the axle, A, to which they are hinged by vertical bolts, C, as plainly shown in the drawings. D, D, are the supporting wheels. E, E, are the wheel-spindles, their inner ends shouldered, threaded, and secured in slots, e, in the lower ends of the plates, B, by nuts, e1. G, G, are eveners, pivoted near their centers in the forward ends of the plates, B. H, H, are bars, their forward ends pivoted to the inner ends of the eveners, G, G, and their rearward ends pivoted to Jugs, a 1 vertical parts, A1, of the axle. I, I, are hooks on the outer ends of the eveners, G, G, to which the draught animals are attached.' From this on, the original and reissue specifications are substantially alike, the description of Fig. 1 of the reissue closing with the words: 'It will be evident that the draught-plates, B, support and give direction to the course of the wheels, while the wheels in turn serve to support them.' The first claim of the original is for 'the axle, A, having plates, B, hinged to the wheel-spindle plates, C, so that the wheels are retained in the line of progression when one is in advance of the other, as set forth.' The second claim of the reissue is for 'the axle, A, hinged to the wheel-spindle or draught-plates, B, B, so that the wheels are retained in the line of progression by the draught of the animals, when one is in advance of the other, substantially as described and for the purpose specified.' The third claim of the original is: 'The evener-bars, G, G, and bars, H, H, when combined and arranged to operate with the hinged axle, A, plates, C, and wheels, E, E, substantially as and for the purpose specified.' And the sixth claim of the reissue: 'The evener-bars, G, and bars, H, combined and arranged to operate with the hinged axle, A, plates, B, and wheels, D, substantially as and for the purpose specified.' That purpose is stated in the second claim to be the retaining of the wheels 'in the line of progression by the draught of the animals, when one is in advance of the other,' and, as this purpose can only be accomplished by the aid of the evener-bars, G, G, and bars, H, H,—that is, not by the combination of the second claim alone, but only by carring into it the eveners and bars of the sixth claim,—it follows that the latter must be brought into the former by intendment. In the original patent the mode of attachment of the team to the cultivator is stated to be by the hooks, I, I, 'on the outer ends of the eveners, G, G, to which the draught animals are attached,' while the reissue patent contains these words: 'B, B, are draught-plates, with projecting forward ends, b, to which the draught animals may be attached direct, or by any suitable device.' An examination of the machine discloses that the wheels are kept in the line of progression by the eveners, G, G, and their connection; and when they are dispensed with, and the hitch made direct, the wheels follow the animals, and may get out of the line of progression. As it is admitted that, if the eveners are elements of the second claim, the effect of their omission, and of hitching directly to the draught-plates instead of to the eveners, would be to enlarge the claim, and as in our judgment this is precisely what was done, the reissue must be held to have been illegally expanded. It may also be observed that the connecting bow in the original patent, called an 'axle,' consists of a central curved portion with a plate attached to each end, and two spindle-plates, a combination of five parts. In the reissue the axle and side plates are treated as one part, making, with the two spindle draught-plates, three parts. There is therefore an omission in the latter combination which tends, by reducing the number of elements, to render its scope less narrow than that of the original. As we have seen, the original first claim was for 'the axle, A, having plates, B, hinged to the wheel spindle-plates, C, so that the wheels are retained in the line of progression when one is in advance of the other, as set forth.' The second claim of the reissue is for 'the axle, A, hinged to the wheel-spindle or draught-plates, B, B, so that the wheels are retained in the line of progression by the draught of the animals, when one is in advance of the other, substantially as described, and for the purpose specified.' The axle, having plates as described hinged to wheel spindle-plates, is not identical with an axle omitting the first-named plates, or having them so affixed as to become a constituent part thereof. The omission of the plates, B, and the addition of the direct draught, are significant and material changes, and it is well settled that a reissue can only be granted for the same invention intended to be embraced by the original patent, and the specification cannot be substantially changed, either by the addition of new matter, or the omission of important particulars, so as to enlarge the invention as intended to be originally claimed. Passing to the question of infringement, it will be found that when the extent of the invention is determined, as it must be, by reference to the state of the art, the appellee's machine does not infringe in respect to those parts of the claim which can be held to have been unanticipated. It is alleged in the bill that in Pattee v. Plow Co., in the United States circuit court for the Northern district of Illinois, the court sustained the validity of said reissued letters patent No. 6,080. Upon referring to that case (10 Biss. 377, 9 Fed. Rep. 821) we find that Judge BLODGETT held: 'From the proof in this case it is quite clear to me that Pattee was not the first to conceive and embody in a working machine the idea of a tongueless straddle-row cultivator. The first machine shown in the proof which embodies this idea is that patented by Isaac Constant, in November, 1851. It is a tongueless straddle-row cultivator, with all the elements for a working machine of that description, and so arranged as to be what may be called in this art self-sustaining; that is, it will stand upon its own supports. This was also done by Arnton Smith in January, 1855; by Whitely, in 1860 to 1865; by E. W. Vangundy, in February, 1864; by Pratt, in October, 1864; and by Adam Young, in November, 1866. All these show cultivators constructed without a tongue, with two plow-beams held together by a yoke, each plow drawn by its own draught animal, and operating independently of the other.' The Constant patent here referred to is in this record, and shows a tongueless cultivator, in which the inside beams move vertically and laterally, independent of each other, and each draught animal is hitched to its own side, while the side supports are beams to which two cultivator shovels are applied. The Smith machine is a tongueless cultivator, in which two mould-board plows are connected together by a bar in front, not arched up in the center. A horse is to be attached to each plow, and the coupling so made as to allow an independent motion. Of the Pratt patent, Judge BLODGETT says that Pattee's arched and jointed axle is fully anticipated by it in form of construction, function, and mode of operation. This Pratt patents shows a flexible, parallel, tongueless cultivator, in which each horse pulls his own side of the machine. The patent to William Tasker, of 1859, has an axle hinged to draught or spindle-arms, having projecting bars so coupled that the wheels are retained in the line of progression by the draught of the animals. Tasker's fifth claim is: 'The connecting of the wheel stumps to a vertical spindle or spindles, capable of turning freely in vertical collar bearings or sockets, as hereinbefore described.' The description as to this part of his machine is thus: 'J, J, are adjustable stumps for carrying the running wheels, K, K. These stumps pass through the overhanging lugs, L, L, formed at the top and bottom of each of the round spindles, M, M, which are contained in the vertical sockets, N, N, (one of which is shown in section in figure 3,) of the cast-iron frame, C, and are free to turn therein; thereby enabling the stump of each wheel to swivel or lock round when turning the plow, as shown by the dotted lines in figure 2.' If Pattee's claim were merely for a combination of an axle, having an elevated central portion, with the wheel-spindles, so that the draught of the team controls the direction of the wheels, the Tasker patent anticipates it; but the combination differs from that in the arrangement by which the evener-bars are carried inwardly, so as to connect with the arch or central part of the axle, making the axle a part of the evener so combined, and thus maintaining the parallelism of the wheels. Appellees' machine does not have 'the wheel-spindles or draught-plates' of the patent, nor the axle, A, with side-plates, B, but it uses the Pratt axle of 1864. Nor in appellees' machine is the parallelism of the wheels maintained by the draught devices, nor are they retained in the line of progression by the draught of the animals, but turn as the animals may pull. The beam-frames of appellees' machine have nothing to do with the wheel-spindle. The snugs of Pattee's have nothing to do with the plow-beams. The differences are so great that interchangeability of the parts of the two machines would be utterly out of the question. In our judgment the reissue, if valid, when limited to what alone could be claimed as new, is not infringed by appellee. The first and second claims of the Kendall patent No. 174,684 are as follows: '(1) The runners, E, arranged to support the axle of a tongueless cultivator, with the plows, D, suspended therefrom, in manner substantially as described. (2) The combination of the runners, E, plows, D, hook-rods, F, and axle, A, of a tongueless cultivator, substantially as and for the purpose specified.' As stated on behalf of appellant, 'the second claim in said patent is a claim for substantially the same combination as recited in the first claim, but differently worded from the first claim,' and as the hang-up devices are necessary for the suspension of the plows, the two claims may be treated as one. The invention is said in the specifications to consist of the use of runners attached to the truck-frame or axle in such manner that they will not interfere with the operations of the machine when in use, and will act as supporting runners for the axle when the rear ends of the plows are elevated and suspended thereon; and, second, in the combination of hooks or rods for suspending the plows on the axle, with said axle and plows. The drawings show the axle, the wheels, the draught-plates, and the plows of an ordinary cultivator of the tongueless class. The runners, constituting, as alleged, the 'main feature' of the improvement, are journaled on the outer ends of the spindles of the wheels, midway their lengths, and their forward ends curved inward, and secured to the draught-plates by a threaded end and nut, while their rear ends are extended backward and downward, and curved in such position that when the plows are in operation in the field, and the axle upright, the rear ends of the runners will be above and free from the surface of the ground, and, when the rear ends of the plows are elevated and suspended by any means from the axle, the rear ends of the runners will rest upon the ground, and support the axle from being pulled backward and downward. In short, as in the machines with a tongue, the plows are raised up and suspended from the tongue to keep them off the ground, so in the tongueless machine the plows are raised up and hooked onto the axle, and, to prevent their falling backward with the axle, runners are provided, connected with the axle and the hitching-arm of the machine, which sustain the axle when the plows are hooked on, but are themselves raised from contact with the ground by the draught when the plows are in use. The runners are described as 'journaled on the outer ends of the spindles,' but it is also stated that they 'may be attached rigidly to any suitable part of the axle, at one or more points of attachment, and extend backward in the same manner as described.' These runners, having the wheel-spindle or axle for their fixed point of support, are necessarily rigid and unyielding, and work automatically, their rear ends being raised by the pulling of the team, and lowered by the weight of the plow-beams when placed on the hooks. The rigidity of the runners, and the resulting automatic action, are the essential characteristics of the patent; for tongueless wheel cultivators, with runners to keep the plows off the ground, were common and well known in the art when it was issued. It is contended by appellant that the true state of the art is contained in the prior patents of Poling of 1872, and Robertson of 1875; and, while many others are exhibited, an examination of these will, we think, sufficiently establish the conclusion just expressed. Poling's patent is for a tongueless cultivator, provided with runners, which are placed under the beams by hand when the plows are being transported, and which are taken out and carried on the beams when the plows are in operation. Robertson's patent is for a tongueless cultivator, with draughtplates, wheels, and beams, and runners pivoted to the beams near the axle, and arranged with set-screws to lock the plows up and let them down. It is immaterial to the operation of the runners whether they act directly on the plow-beams or through the axle. In appellees' machine the runner is arranged upon the end of an arm which projects backward from the axle. When the plows are in use the runner is turned up out of the way. When the runners are used the plows are raised, and the runners prevented from turning up by a catch on the arm. This machine does not contain runners constructed as the Kendall runners are, in the rigid form, and operated by the draught of the team to keep them off, or by the weight of the plows to keep them on, the ground, and so lacks the distinctive features of the Kendall patent. It is not automatic, but requires manipulation every time the use is changed. When the runner is put in use its rear extension is turned down by hand, and a locking-dog, hung within a slot in the arm, turned into position. When the runner is not to be used, it must be moved so as to release the dog, and permit it to be thrown up, and the arm is then thrown upward and forward; the dog being allowed to drop so as to afford a support for the runner. This jointed runner with a lock cannot be held to be the Kendall rigid bar. We agree with the circuit court that there is no infringement. Patent No. 187,899 is described as being for a new and improved mode of constructing the arch or central and main part of straddle-row cultivator beam-yokes or axles, and of connecting the side parts thereto, and the invention as consisting 'in constructing said arch of curved adjacent bars of iron or steel, to the ends of which may be attached, by riveting, the cast-iron parts for securing thereto the plows and wheels, and which may be strengthened by the use of stiffening bolts.' The use of parallel bars is exceedingly common, and, so far as the attachment of the bars to the end plates is concerned, there is nothing new in that method. The Burnham and Lathrop patent of 1866 shows a yoke connecting the plow-beams together, made with two parallel bars with end castings, put together with one bolt near the rear ends of the beams, instead of with two bolts at the front ends, as in appellant's machine. The specification says: 'The two frames, G, G, are connected by an arched or semi-circular yoke, H, the ends of which are pivoted to bars, I, I, which are secured on the tops of the plow frames, G, G, by pivots, e; the bars being allowed to turn freely on the pivots, e.' The Louden patent of 1876 has an arched axle of tubular wrought iron, gas-pipe being stated to be very suitable, having end castings attached rigidly or cast thereon. The Barr patent of 1872, and the Miller patent of the same year, show arched axles or beam-yokes of two or more parts. The Perkins patent of the same year shows the beams themselves made of parallel curved bars. What is sought in all these patents is strength and lightness, together with cheapness and durability, but they are simply modes of construction. And that described in this patent embraces nothing that is not old, and really nothing that is patentable; that is, which involves invention rather than mechanical skill. Upon the whole case we are satisfied with the conclusions reached by the circuit court, and its decree is therefore affirmed.
129.US.557	On the proofs which are reviewed at length in the case stated by the court, Held, that the agreements between the parties of March 20, 1880, were so far consummated that neither narty to this suit can insist upon superiority of lien as between themselves; that no case of misrepresentation of facts as distinguished from matters of opinion is made out to warrant declaring the agreements null and void, that the execution and delivery of his note by Dawson and the delivery of the cattle to him, and O'Neal's bill of sale consummated the written agreement so far as Jie was concerned, that the action of appellants m commencing suit against Dawson and O'Neal, and in taking possession of the cattle was unjustifiable, and that Dawson may recover his damages thereby suffered by way of reconvention in this suit; that the original bill for foreclosure having been amended so as to be in the alternative, seeking the ascertainment of the indebtedness of O'Neal to complainants and the payment of their share of the proceeds of the cattle, the bill should be retained and go to decree; that the pro rata proportions of indebtedness were incorrect; that the appellant is not so situated as to be entitled to set up an estoppel in this respect; that the proportions in which the fund should be divided between the parties should be determined as of the date that Dawson paid the money into the bank, that the laws of Illinois govern as to the rate of interest; and that, as the decree was severable in fact and in law, and as O'Neal's estate (he having deceased) had no concern with the matters complained of by the bank and by Dawson, they were entitled to prosecute their appeal without joining O'Neal's admmstratrix, who did not think proper to question the judgment.	The action of the parties at Will's Point, on the 22d day of May, 1880, so far carried out and consummated the agreements of March 20th that neither the bank nor Hunter, Evans & Co. could thereafterwards insist upon superiority of lien as between themselves; and we are satisfied, upon a careful review of the evidence, that Hunter, Evans & Co. were not entitled to rescind the agreements, or treat them as annulled, on the ground of fraud in the obtaining of their execution. Many circumstances are clearly made to appear which rendered it natural for Hunter, Evans & Co. to desire to make just such agreements as they did make, and are inconsistent with the theory that they did not act with their eyes open. Although they claimed a first lien upon the larger part of the cattle in question, yet this was contested by the bank on the ground of the invalidity thereof under the statute, as against its mortgage. And, while it is denied on the part of Hunter, Evans & Co., the evidence of the vice-president of the bank is explicit to the effect that the line of credit extended to O'Neal by the bank was on the strength of the agreement of William Hunter to guaranty the payment of O'Neal's drafts; and that, as to the particular draft which created the indebtedness due the bank, the bank neglected to take a bill of lading, because it relied on the statement of Hunter that the draft would be honored. Questions such as these demanded solution, and it is not to be wondered at that Hunter, Evans & Co., as they say in their bill, to avoid 'litigation, expense, and loss,' entered into these contracts. Again, a portion of his alleged indebtedness to Hunter, Evans & Co. had always been disputed by O'Neal. O'Neal had more cattle than those named in the bill of sale of Hunter, Evans & Co., was believed to have other property, and there is considerable evidence tending to show that his financial condition need not have been rendered as desperate as it subsequently apparently became. It was desirable that the cattle should be sold, and the sale to Dawson was agreeable to both Hunter, Evans & Co. and the bank, if an agreement could be made in respect to the proceeds. In the light of these circumstances, it would require a strong case of definite misrepresentation as to facts, as distinguished from mere matters of opinion, to be made out before these agreements could be declared null and void. Complainants aver, in substance, that O'Neal represented that he owned a large number of cattle not in the O N brand, then running in the range in Van Zandt county, which were not included in the bill of sale to Hunter, Evans & Co., but were included in the bank's mortgage, and which were 'quite or very nearly sufficient in value to pay the said O'Neal's indebtedness to the said bank,' and that they were induced to enter into said agreements in reliance on said representations, which were false. But we think the evidence fairly preponderates that no such statements were made, and certainly not to the bank's knowledge, and that the testimony to the contrary is given under a misapprehension arising from O'Neal expressing his belief that he had cattle enough in all to pay both debts. And this inference is heightened by the fact that the tendency of the evidence is to establish that William Hunter, the agent of Hunter, Evans & Co., was acquainted with O'Neal's cattle, and must have known that they were principally of the O N brand. If the contention that O'Neal fraudulently disputed so large a part of the claim of Hunter, Evans & Co. against him, and then fraudulently refused to secure the disputed amount, were sustained by the evidence, neither the bank nor Dawson should be held bound by such conduct on his part without convincing proof that they participated or acquiesced in such fraud. And it would have been the duty of Hunter, Evans & Co., if they designed to attempt to set up fraud in these particulars, to have refused to go forward in consummation of the agreements on the 22d day of May at Will's Point. When the parties met there on that day, O'Neal and Dawson having been in the mean time put to a large expense on the strength of the agreements, in gathering and caring for the cattle when and as gathered, the amount due from O'Neal to Hunter, Evans & Co. had not been determined, and O'Neal insisted that their account was erroneous to the extent of between eight and nine thousand dollars. The undisputed portion of the claim was finally set at $9,915.74. The debt due the bank was admitted to be $10,339.85, and the price to be paid for the cattle by Dawson, $19,033. The attorneys of the bank and Hunter, Evans & Co. proceeded to ascertain what the pro rata shares in the $19,033 of the bank and Hunter, Evans & Co. would be, and placed the bank's at $9,715.78 and Hunter, Evans & Co.'s at $9,317.22; these being the proportions that the undisputed debt due the bank of $10,339.85, and the undisputed debt of $9,915.74 due to Hunter, Evans & Co., were, respectively, entitled to receive. McCulloch had been selected as the party to accompany Dawson 'in driving said cattle from Texas to any point said cattle may be sold,' to 'have the legal possession of said cattle,' and to 'receive the proceeds of the sale of said cattle from any and all purchasers of said cattle to the extent and amount of said indebtedness assumed by said Dawson,' namely, inasmuch as the value of the cattle delivered to Dawson was not equal to the amount of the indebtedness, 'pro rata to the extent of the cattle received.' The undisputed debts due to Hunter, Evans & Co. and the bank, the price of the cattle, and the proportions in which the proceeds were to be distributed, having been arrived at, Dawson signed and delivered the note for $19,033; O'Neal executed an absolute bill of sale to him; the cattle were delivered; and McCulloch and Dawson started on the drive, it being understood that the cattle were to be driven to market beyond the boundaries of the state. On the same day Dawson sold cattle to the amount of $3,419, which was receipted for on the note by McCulloch, and which was divided pro rata between Hunter, Evans & Co. and the bank, as agreed upon by their representatives at the time; Hunter, Evans & Co. receiving $1,668.56. On the 25th of May, McCulloch received from further cattle sold a draft for $1,842, payable June 22d, which, being payable to Hunter, Evans & Co., was remitted to them, but McCulloch at the same time drew a draft on Hunter, Evans & Co. in favor of the bank for the bank's share, according to the proportion agreed upon, namely, $939.88; McCulloch having been instructed by the attorneys that of every $1,000 received he should send Hunter, Evans & Co. $482.52, and the bank $510.48. In our judgment, the execution and delivery of his note by Dawson, and the delivery of the cattle to him, and O'Neal's bill of sale, constituted, under the circumstances, the consummation of the written agreement, so far as he was concerned. The cattle belonged to Dawson, subject to being retaken by Hunter, Evans & Co. and the bank, if Dawson did not sell them by the 1st of October. All that remained for Dawson to do was to sell the cattle, and pay over the proceeds to McCulloch, until his note was extinguished. It may be conceded that Hunter, Evans & Co. supposed on the 22d of May that O'Neal would be able to secure the balance due, but Dawson did not agree, as we view the transaction, that O'Neal should do so, nor was there any reason why he should, if he paid the price agreed upon for the cattle. The controversy, if any, between the other parties, would be transferred to the proceeds. What they all desired, and what they all agreed upon, was a sale of the cattle for their value, and the collection of the proceeds of such sale, and this was effected in the manner stated by the arrangement with Dawson, who, however, was under no obligation after the cattle were delivered to him, except to account for their proceeds to the amount of the note he had given, or surrender them in case of failure to realize before October 1st. We regard the action of Hunter, Evans & Co., in commencing suit on the 31st day of May, in the district court of Montague county, against Dawson impleaded with O'Neal, and taking possession of Dawson's cattle by writ of sequestration, as unjustifiable; and hold that Dawson is entitled to recover such damages as he actually sustained, by way of recovention, in this suit. We are asked to dismiss the bill altogether, and if it had remained, as originally filed, a bill for the foreclosure of the chattel mortgage given Hunter, Evans & Co., which mortgage had been in effect disposed of by the agreements of March 20th, that course might have been proper; but the parties repleaded, and the bill as amended being in the alternative, and seeking the ascertainment of the indebtedness of O'Neal to complainants, and the payment of their share of the proceeds of the cattle, we think it should be retained and go to decree, upon being remanded, in accordance with the views herein expressed. The agreement between Hunter, Evans & Co. and the bank and O'Neal provided that, in case of any difference or trouble about the amount of the indebtedness of O'Neal to Hunter, Evans & Co. or the bank, the disputed amount, when determined by agreement, suit, arbitration, or otherwise, should be paid from the proceeds of the sale to Dawson, or from security furnished by O'Neal; and the circuit court held that, when the amount of the claim of Hunter, Evans & Co. was determined in the suit, they should participate pro rata in the fund derived from Dawson's note, and from property of O'Neal realized upon outside of that. As it is clear that O'Neal was liable for very much the larger part of the amount disputed by him, so that the pro rata proportions arrived at at Will's Point were incorrect, and as we do not perceive that the bank is so situated as to be equitably entitled, under all the circumstances, to insist, upon the principles of estoppel or otherwise, that the proportions as then estimated must necessarily remain unchanged, we are not inclined to challenge the conclusion reached by the circuit court in this regard. It appears from the evidence that after Dawson replevied the cattle he sold them, and paid the balance due upon his note into the bank to abide the result of this suit, but at what date this deposit was made, and the exact amount of it, does not appear. The sums of $3,419 and $1,842 had already been paid upon the note, leaving a principal sum of $13,772; but the note bore 10 per cent, interest, which must be added down to the date of the payment into the bank. Upon a supplementary writ of sequestration, dated June 21, 1880, and directed to the sheriff of Van Zandt county, 247 cattle belonging to O'Neal were taken, of which he replevied 21 cows and calves, worth $110, and gave bond therefor July 17; and on the 20th of July the remainder of said cattle were delivered to Hunter, Evans & Co., being valued by the sheriff at $2,424.56, Hunter, Evans & Co. giving bond in the penal sum of $5,000. These cattle, it is testified to by O'Neal and Allen, were worth $15 a head, with the exception of a few calves, which were worth about $7 a head. Hunter, Evans & Co. sold 196 of them for $2,141.50. The circuit court found their value to be that fixed by the sheriff, namely, $2,424.56, and with that we are content. In the view which we take of the conduct of Hunter, Evans & Co., they are to be held to have received this $2,424.56 July 20, 1880, and to account also for $110 as of July 17, 1880, leaving them to pursue for their own benefit the sureties on O'Neal's bond. The fund, therefore, to be divided pro rata, consists of the amount of the Dawson note, with such interest as accrued thereon down to the date of the payment by Dawson into the bank, and of the $2,424.56, and of the $110. As of what date shall the proportions in which this fund is to be divided between Hunter, Evans & Co. and the bank be ascertained? We believe it most equitable that this pro rata division should be determined as of the date that Dawson paid the money into the bank. In arriving at the amount actually due from O'Neal to Hunter, Evans & Co., for the purpose of distributing the fund, we think the account attached to the bill may be treated as sufficiently shown by the evidence to be correct, with the exception of some of the interest charges, which are calculated at 10 per cent., and which ought not to be compounded. The rate of interest in the state of Illinois in 1879-80 was 6 per cent., but in all written contracts it was lawful for the parties to stipulate or agree that 8 per cent. per annum should be paid, and it was provided that any person or corporation who should contract to receive a greater rate of interest or discount than 8 per cent. should forfeit the whole of said interest so contracted to be received, and be entitled only to recover the principal sum. Rev. St. Ill. 1881, c. 74, p. 615. In the state of Texas the rate of interest, when no specified rate was agreed upon, was 8 per cent., which applied to open accounts from the 1st day of January after the same were made. The parties to any written contract might agree to and stipulate for any rate of interest, not exceeding 12 per cent. per annum. Rev. St. Tex. 1879, p. 433. We agree with appellee's counsel that the statutes of Texas do not apply, and are of opinion that Hunter, Evans & Co. are entitled to receive interest at no greater rate than that fixed by the laws of Illinois. As usury was not pleaded by O'Neal, we shall not disturb in the account the discounts of his notes and the $50 interest charged as of August 20th; but we are not convinced that O'Neal acquiesced in any of the charges of interest after that. These charges up to February 20, 1880, amounted to $875.76. The balance shown February 20, 1880, was $17,871.34, and $875.76 being deducted leaves $16,995.58. Taking this as a basis, interest may be calculated on the average monthly balances after August 20, 1879, at the rate of 6 per cent., down to the date at which Dawson paid the balance due on his note into the bank, and then added to the principal sum. This will give the amount due to Hunter, Evans & Co. as of that date, if they had received no payments thereon in the intermediate time. The bank's debt should be ascertained as of the same date, namely, the date when Dawson paid the balance on his note into the bank, by adding the interest to O'Neal's note held by it of $9,810.11, dated December 10, 1879, according to its terms. The proportion of the fund to go to each of the debts so ascertained can then be arrived at. From the pro rata amount to come to Hunter, Evans & Co. should be deducted the payments of $1,668.56, May 22d, and $1,842, June 22d, and the sum of $110, July 17th, and of $2,424.56 as of July 20th, with interest, and the balance of the pro rata amount should be decreed to be paid out of the money deposited by Dawson as of the date of such deposit, the bank retaining the remainder; and at the same time provision should be made for the production and cancellation of Dawson's note, the discharge of the sureties upon his forthcoming or replevin bond, and the payment of his claim in reconvention. While the case was pending in the circuit court, John O'Neal died, and the cause was revived as to Mary O'Neal, his administratrix. She did not appeal, and the bank and Dawson petitioned the court to be allowed an appeal as between themselves and Hunter, Evans, and Buel, the complainants, which was ordered by the court as to said two defendants, who perfected their appeal accordingly. This was proper, as, with the matters complained of by the bank and by Dawson, O'Neal's estate had no concern. The total balance of the indebtedness due from that estate, after all payments and money realized were applied, would be the same, irrespective of the proportion of such balance found due to each of the two creditors. The decree was severable in fact and in law, and the bank and Dawson were entitled to prosecute their appeal without joining their co-defendant, who did not think proper to question the judgment. And while, in order to a correct distribution of the fund, it becomes necessary to find the indebtedness of O'Neal to Hunter, Evans & Co. and to the bank, this is not a determination of the amount remaining due after the distribution is made, with intent to a decree over against O'Neal's estate therefor, as the decree originally entered, so far as relates to that, stands unappealed from by either of the parties concerned. The decree of the circuit court is reversed, with costs, and the cause remanded, with directions to proceed in conformity with this opinion.
132.US.192	Either a statement of facts by the parties, or a finding of facts by the Circuit Court, is strictly analogous to a special verdict, and must state the ultimate facts of the case, presenting questions of law only, and not be a recital of evidence or of circumstances, wnch may tend to prove the ultimate facts, or from which they may be inferred.	Assuming the agreement in writing—waiving a jury, and submitting the case to the decision of the circuit court—to have been seasonably filed, the record is not in such a shape as to authorize this court to review that decision. By the settled construction of the acts of congress defining the appellate jurisdiction of this court, either a statement of facts by the parties, or a finding of facts by the circuit court, is strictly analogous to a special verdict, and must state the ultimate facts of the case, presenting questions of law only, and not be a recital of evidence or of circumstances which may tend to prove the ultimate facts, or from which they may be inferred. Burr v. Navigation Co., 1 Wall. 99; Norris v. Jackson, 9 Wall. 125; Martinton v. Fairbanks, 112 U. S. 670, 5 Sup. Ct. Rep. 321. In the present case the pleadings present issues of fact. There is no bill of exceptions. The so-called 'statement of facts' is mainly a recapitulation of evidence introduced by the parties at the trial. The case was not submitted to the decision of the court upon that statement only, but the court made a further finding as to what took place at the trial. That finding merely states that the parties admitted that, so far as the facts were stated in a certain reported opinion of the supreme court of Louisiana, they were a correct statement of the facts of this case; but that each party claimed that there existed additional facts, as to which there is no finding. On referring to that opinion such facts as are there stated appear to be scattered through it, intermingled with statements of conflicting evidence, and with the court's conclusions of fact upon that evidence, as well as with its conclusions of law. Rabasse v. Parish of Terrebonne, 30 La. Ann. 287. In short, there is nothing in the present case which can be called in any legal or proper sense, either a statement of facts by the parties, or a finding of facts by the court; and no question of law is presented in such a form as to authorize this court to consider it. Judgment affirmed.
132.US.191	In regard to motions for a new trial, and bills of exceptions, the courts of the United States are independent of any statute or practice prevailing in the courts of the State in which the trial is had.	In this action, tried by the circuit court without a jury, there is no case stated by the parties, or finding of facts by the court. The bill of exceptions, after setting forth all the evidence introduced at the trial, states that 'there were no declarations of law asked for or given by the court;' and the single exception taken is to the overruling of a motion for a new trial, which is a matter of discretion, and not a subject of exception, according to the practice of the courts of the United States. In regard to motions for a new trial and bills of exceptions, those courts are independent of any statute or practice prevailing in the courts of the state in which the trial is had. Railroad Co. v. Horst, 93 U. S. 291; Newcomb v. Wood, 97 U. S. 581; In re Iron Co., 128 U. S. 544, 9 Sup. Ct. Rep. 150. Judgment affirmed.
132.US.17	The payment of money to a customs official to avoid an onerous penalty, though the imposition of that penalty may have been illegal, is sufficient to make the payment an involuntary one. The compulsory insertion by an importer of additional charges upon the entry and invoice, which necessarily involve the payment of increased duties, makes the payment of those duties involuntary. The general rule that the valuation of merchandise made by a customs appraiser is conclusive if no appeal be taken therefrom to merchant appraisers, is subject to the qualification that if the appraiser proceed upon a wrong principle, contrary to law, and this be made to appear, hs appraisement may be impeached. A statute which requires the dutiable value of imported goods to be reached by adding to the market value of the goods the cost of transportation, and other defined charges, does not authorize an appraiser to reach the VOL. cxxxI-2 amount of such cost and charges by an estimate or percentage and an importer who pays duties on an importation thus calculated may, in an action brought to recover such as were illegally exacted, show wherein such estimate or percentage was illegal and excessive.	This is an action to recover for an alleged overcharge of duties on imports. The goods imported were bananas brought from Aspinwall. The duty was 10 per cent. ad valorem. The plaintiffs offered evidence tending to show the market value of the bananas at the port of shipment, which was claimed to be only 50 cents apiece for the large bunches, and 25 cents apiece for the small bunches. The invoices received with the cargo exhibited this as the true market value. and added certain charges for labor and consul fees. The appraisers required the plaintiffs to add 50 per cent. of these amounts as transportation charges for bringing the bananas into Aspin wall, and also certain shipping charges and commissions. The plaintiffs protested against this as an unjust addition; but whenever it was omitted the charge was added by the appraiser, and a penalty of 20 per cent. of the whole duty was imposed and exacted; and the officers declared that this would be done whenever the addition should be omitted. To avoid this penalty, and to get immediate possession of their goods, (which are of a perishable nature,) the plaintiffs made the addition required, and paid the increased duties that resulted, but always under protest, as before stated. The form of the entries and invoices, with the additions, was as follows, the additions being in italies: Entry. 'Merchandise imported by Frank Brothers Company in the steam-ship Alsa, whereof Seymour is master, from Aspinwall to New York, Feb. 23, 1882. Marks, F. B.' 'Two bins of bananas, containing 4,132 large bunches, at sixty cents,' 'pesos, 2,479.20,' '3,463 small bunches at thirty cents,' '1,038.90 pesos.' 'Charges, two hundred and thirty-nine pesos.' 'Shipping charges added, as required by the appraiser, to make five cents Colombian currency per bunch, 140.38 pesos.' 'Transportation charges added, as required by appraiser, on 4,132 large bunches at 25 cents, $1,033, and 3,463 small bunches at 12 1/2 cents, $432.87.' Invoice. 'Invoice of merchandise shipped by the Frank Bros. Co. on board the Alsa, Sansome, master, bound for New York, and consigned to Frank Bros. Co.; Colon, Feb. 11, 1882, 2 bins, containing: "4,202 bunches bananas at 60. 2,521 20 pesos. "3,564 bunches bananas at 30. 1,069 20 " "Charges for labor............ 239 37 " "Consul fee...................... 3 " ---------------- 3,832 77 " "The Frank Bros. Company. "4,132 large bunches at 60.. 3,479 20 " "3,463 small bunches at 30.. 1,038 90 " "Charges...................... 239 37 " "Shipping charges added, as required by the appraiser, to make 5 cents Colombia currency per bunch........... 140 38 " --------------- 3,897 85 " "Reduced to U.S. currency.......... $3,207 93 "Transportation charges added, as required by the appraiser, on 4,132 large bunches at 25 cents................................ 1,033 "3,463 small bunches at 12 1/2 cents. 432 87 --------- $4,673 80 "Commission, 2 1/2 per cent.......... 116 84 --------- $4,790 64" The appraiser's return indorsed thereon was as follows: 'Value correct, with importer's additions.' It was contended by the counsel for the government at the trial, and is contended here, that the payment of the duties complained of was a voluntary payment, inasmuch as the plaintiffs themselves made the additions to the entries and invoices, and that therefore they cannot recover back any part of the money so paid; and they requested the court below to instruct the jury to render a verdict for the defendant. This the court refused to do, and left it to the jury to decide, upon the evidence, whether the making of the additions was a voluntary act on the part of the plaintiffs, or done under constraint, in view of the penalty sure to be imposed in case it was not done. On this point the judge, in his charge to the jury, speaking of the entry and the additions made by the plaintiffs or their agent, said: 'He says he put them on there because he was compelled to. If that is so, he ought not to be estopped from recovering, and here is a question for you on that subject, and you will decide it in this way: If those statements and figures were put on there because he thought that was the best way, on the whole; if, exercising his own judgment freely, he thought that it was the best way to get along with this to put it on there are let it go,—he can't take it back; * * * he can't recover anything back. The verdict will have to be for the defendant anyway, if that is so, because it was his own act in putting it on there. The collector assessed the duty just as he made it, and he can't complain. 'But * * * if he was required to do it, or given to understand by some officer in the collector's department that it would be the worse for him, seriously, if he didn't,—as for instance, if the appraiser told him, if he didn't put those on there, the collector's office would, that the appraiser would, and that he would be exposed to a penalty that would be assessed against him; if he was given to understand by the collector's department, or some officer of it, that, if he didn't put these figures on there, they should, and make it the worse for him because he didn't, and he would thereby be exposed to a penalty of a larger duty which he would have to pay for not doing it, and he was in that way, for the sake of saving himself from the penalty which they would put upon him beyond what would otherwise be chargeable, induced to put them on, then he is not bound by it. * * * If you find he did not do it freely, then you can look further, and see if there was anything put on there that ought not to be. If he was compelled to do it, it ought not to go on; and if he was, the plaintiffs are entitled to recover. And, if you decide he is bound by putting that on, that will end the case; you must give a verdict for the defendant. If not, you may look and see if he was compelled to pay more than he ought,—if he was compelled to pay transportation charges more than he ought to,—and, if so, find a verdict for the right amount. If they were compelled to pay labor charges more than they ought to pay, find the verdict for the plaintiffs for the right amount of that. If they didn't pay any more than they ought to, transportation or labor charges,—then the verdict is for the defendant.' Under this charge, of course, the jury, in finding for the plaintiffs, must have found that they acted under constraint—under moral duress—in making the additions for transportation and labor. We do not see how the verdict can be set aside for error in the charge on this point, unless the law be that virtual or moral duress is insufficient to prevent a payment made under its influence from being voluntary. This point was discussed in Maxwell v. Griswold, 10 How. 242, 256, and in Swift Co. v. U. S., 111 U. S. 22, 28, 4 Sup. Ct. Rep. 244. In Maxwell v. Griswold an appraisement was erroneously made as to the point of time of the valuation, and the importer paid the consequent excess of duties. The government contended that this was voluntary. But this court said: 'This addition and consequent payment of the higher duties were so far from voluntary in him that he accompanied them with remonstrances against being thus coerced to do the act in order to escape a greater evil, and accompanied the payment with a protest against the legality of the course pursued towards him. Now, it can hardly be meant, in this class of cases, that, to make a payment involuntary, it should be by actual violence or any physical duress. It suffices if the payment is caused, on the one part, by an illegal demand, and made, on the other part, reluctantly, and in consequence of that illegality, and without being able to regain possession of his property except by submitting to the payment. All these requisites existed here. We have already decided that the demand for such an increased appraisal was illegal. The appraisement itself as made was illegal. The raising of the invoice was thus caused by these illegalities in order to escape a greater burden in the penalty. The payment of the increased duties thus caused was wrongfully imposed on the importer, and was submitted to merely as a choice of evils. He was unwilling to pay either the excess of duties or the penalty, and must be considered, therefore, as forced into one or the other by the collector colore officii through the invalid and illegal course pursued in having the appraisal made of the value at the wrong period. * * * The money was thus obtained by a moral duress not justified by law, and which was not submitted to by the importer except to regain possession of his property withheld from him on grounds manifestly wrong. Indeed, it seems sufficient to sustain the action, whether under the act of February 26, 1845, (Rev. St. U. S. § 3011,) or under principles of the common law, if the duties exacted were not legal, and were demanded, and were paid under protest.' In that case, it is true, the fact that the importer was not able to get possession of his goods without making the payment complained of was referred to by the court as an important circumstance; but it was not stated to be an indispensable circumstance. The ultimate fact, of which that was an ingredient in the particular case, was the moral duress not justified by law. When such duress is exerted under circumstances sufficient to influence the apprehensions and conduct of a prudent business man, payment of money wrongfully induced thereby ought not to be regarded as voluntary. But the circumstances of the case are always to be taken into consideration. When the duress has been exerted by one clothed with official authority, or exercising a public employment, less evidence of compulsion or pressure is required; as where an officer exacts illegal fees, or a common carrier excessive charges. But the principle is applicable in all cases according to the nature and exigency of each. In Swift Co. v. U. S., 111 U. S. 22, 4 Sup. Ct. Rep. 244, the plaintiffs, who were manufacturers of matches, and furnished their own dies for the stamps used by them, and were thereby entitled to a commission of 10 per cent. on the price of such stamps, accepted for a long period their commissions in stamps, (which, of course, were worth to them only 90 cents to the dollar,) and they did this because the treasury department would pay in no other manner. We held that the apprehension of being stopped in their business by non-compliance with the treasury regulation was a sufficient moral duress to make their payments involuntary. Mr. Justice MATTHEWS, delivering the opinion of the court, said: 'The question is whether the receipts, agreements, accounts, and settlements made in pursuance of that demand of necessity were voluntary in such sense as to preclude the appellant from subsequently insisting on its statutory right. We cannot hesitate to answer that question in the negative. The parties were not on equal terms. The appellant had no choice. The only alternative was to submit to an illegal exaction, or discontinue its business. It was in the power of the officers of the law, and could only do as they required. Money paid, or other value parted with, under such pressure, has never been regarded as a voluntary act, within the meaning of the maxim, volenti non fit injuria.' The cases referred to by Justice MATTHEWS abundantly support the position taken, and need not be repeated here. In our judgment, the payment of money to an official, as in the present case, to avoid an onerous penalty, though the imposition of that penalty might have been illegal, was sufficient to make the payment an involuntary one. It is true that the thing done under compulsion in this case was the insertion of the additional charges upon the entries and invoices; but that necessarily involved the payment of the increased duties caused thereby, and in effect amounts to the same thing as an involuntary payment. But it is contended that the act of the appraiser in making, or requiring to be made, the additional charges for transportation and labor, was final and conclusive, and cannot be made the subject of inquiry. It is undoubtedly the general rule that the valuation of merchandise made by the appraiser, unappealed from to merchant appraisers, is conclusive; but, while this is the general rule, it is subject to the qualification that if the appraiser proceed upon a wrong principle, contrary to law, and this be made to appear, his appraisement is not unimpeachable. This qualification applies to the acts of many other officials charged with duties of a similar character; such as assessors of the value of property for taxation, commissioners for appraising lands taken for improvements, or damages sustained by owners of land, and the like. What is complained of in the present case is that the plaintiffs were required to add to the market value of the goods at the places from which they were exported transportation charges and expenses for labor which were never incurred. If that complaint is well founded, such additions cannot be maintained; for while the appraisers are not limited to the actual cost of articles exported, but may place upon them their market value at the places from which they were imported, and their estimate of that market value is conclusive, they could not, while the law required the addition to that market value of additional charges of transportation, etc., exercise any discretion as to those charges, but were confined to the actual cost thereof, when such cost could be shown. It was 'cost,' not 'value,' which was required in that part of the estimate of dutiable values. The sections of the Revised Statutes which regulated this matter in 1881 and 1882, when the transactions involved in the present suit took place, were sections 2906 and 2907; the latter of which was repealed by the act of March 3, 1883, (22 St. 523.) Section 2906, which is still in force, declares that 'when an ad valorem rate of duty is imposed on any imported merchandise, or when the duty imposed shall be regulated by, or directed to be estimated or based upon, the value of the square yard, or of any specified quantity or parcel of such merchandise, the collector within whose district the same shall be imported or entered shall cause the actual market value, or wholesale price thereof, at the period of the exportation to the United States, in the principal markets of the country from which the same has been imported, to be appraised, and such appraised value shall be considered the value upon which duty shall be assessed.' Section 2907 declared that, 'in determining the dutiable value of merchandise, there shall be added to the cost, or to the actual wholesale price or general market value, at the time of exportation, in the principal markets of the country from whence the same has been imported into the United States, the cost of transportation, shipment, and transshipment, with all the expenses included, from the place of growth, production, or manufacture, whether by land or water, to the vessel in which shipment is made to the United States; the value of the sack, box, or covering, of any kind, in which such merchandise is contained; commission at the usual rates, but in no case less than two and one-half per centum; and brokerage, export duty, and all other actual or usual charges for putting up, preparing, and packing for transportation or shipment. All charges of a general character incurred in the purchase of a general invoice shall be distributed pro rata among all parts of such invoice; and every part thereof charged with duties, based on value, shall be advanced according to its proportion; and all wines or other articles paying specific duty by grades shall be graded and pay duty according to the actual value so determined.' Now, while, under the first of these sections, (2906,) the estimate of the market value of the goods, made by the appraiser, is, in general, unimpeachable, it is plain that the items to be added to that value, under section 2907, did not depend upon estimation, but upon the actual truth of the case, namely, the cost of transportation, shipment, etc., to the vessel in which shipment is made. This cost may be something; it may be nothing. In the present case the appraiser required 50 per cent. of the market value of the goods to be added as cost of transportation. The plaintiffs disputed this item. Evidence was gone into on the subject, and the matter was left fairly to the jury. The only question for us to determine is whether the matter was open to evidence, and could lawfully be left to the consideration of the jury, or whether the determination of the appraiser on this subject was conclusive. We think with the court below that this was a question open for examination. In Oberteuffer v. Robertson, 116 U. S. 499, 6 Sup. Ct. Rep. 462, we decided that since the act of 1883, repealing section 2907 of the Revised Statutes, it is not lawful for the appraiser to add to the market price of the goods the cost or value of the cartons or boxes in which they are packed, either by themselves, or as part of the market value. In the principle involved, that case is similar to the present. If, since the repeal of section 2907, the appraiser cannot lawfully add the cost of packing boxes to the appraised value of the goods, before such repeal he could not lawfully add more than that cost; and, if he did, it was a matter for examination and correction. To the same effect is the case of Badger v. Cusimano, 130 U. S. 39, 9 Sup. Ct. Rep. 431, where the collector caused an appraisement to be made in which a portion of the charges for packing and transportation of the goods imported was deducted from that category, and added to the invoice value of the goods themselves. We held that, in the absence of fraud on the part of the importer, this could not lawfully be done, and that such an appraisement is not lawful or conclusive. We are satisfied. not only on the authority of these cases, but from the reason of the thing, and the proper application of the principles of the law, that the course pursued in the court below was free from error. These are all the questions which it is deemed important to discuss, and the result is that the judgment must be affirmed; and it is so ordered.
129.US.65	A for his own accommodation asked B to collect money for him, without eompensation, and to keep it until A called for it. B collected the money, and, without actual fraud or fraudulent intent, deposited the proceeds to his own credit with his own funds. By an unexpected revulsion he was forced into bankruptcy before he had paid it over, and made a composition with his creditors Held, that the debt thus incurred by B to A was not a debt created by fraud or embezzlement of the bankrupt, or while he was acting in a fiduciary capacity within the exception provided for in Rev Stat. § 5117. The word "fraud" as used m Rev Stat. § 5117 means positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, and not merely implied fraud, or fraud m law.	The case presented upon the record, as found by the jury, is that of a produce dealer who, having been requested by parties to collect money for them as an accommodation, and without compensation, and to keep it until they called for it, proceeded to make such collection, and, without actual fraud or fraudulent intent, deposited the proceeds to his own credit with his own funds; and who before he paid it over was, by an unexpected revulsion, forced into bankruptcy, and made a composition with his creditors. The question involved is whether the debt thus incurred was within the exception provided for in section 5117 Rev. St., which is as follows: 'No debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged by proceedings in bankruptcy.' The judge on the trial charged the jury that the money under such circumstances was received in a fiduciary character, and that the plaintiffs must recover. The supreme court of Vermont affirmed the judgment of that court, on the ground that, though the above charge was technically erroneous, it was harmless, because the act of the defendant, in mingling the money with his own and using it, was, in the face of the plaintiffs' instruction to keep it until the called for it, a wrongful and fraudulent act, a betrayal by the defendant of the trust reposed in him, and therefore a fraud which created a debt that was not discharged by the defendant's composition with his creditors under the provisions of the bankrupt law. The effect to be given to the phrases, 'while acting in a fiduciary character,' and 'created by the fraud of the bankrupt,' has been considered and fully settled by this court in the following cases: Chapman v. Forsyth, 2 How 202; Neal v. Clark, 95 U. S. 704; Wolf v. Stix, 99 U. S. 1; Hennequin v. Clews, 111 U. S. 676, 4 Sup. Ct. Rep. 576; Strang v. Bradner, 114 U. S. 555, 5 Sup. Ct. Rep. 1038; and Palmer v. Hussey, 119 U. S. 96, 7 Sup. Ct. Rep. 158. The class of debts held by the decisions in those cases to be excepted from the operation of bankrupt proceedings has been stated and illustrated with a clearness and fullness which leaves but little opening for any controversy with regard to the application of the clause under consideration to particular cases. Under the bankrupt act of 1841, which excepted from discharge debts of the bankrupt, creatated in consequence of a defalcation as a public officer, or as executor, administrator, guardian, or trustee, or while acting in any other fiduciary capacity, this court, in Chapman v. Forsyth, held that the case enumerated in the act are cases not of implied but special trusts; that the phrase, 'in any other fiduciary capacity,' referred, not to those trusts which the law implies from the contract, and which form an element in every agency, and in nearly all the commercial transactions in the country, but to technical trusts; and hence that a factor who had sold the property of his principal, and had failed to pay over to him the proceeds, did not owe to him a debt created in a fiduciary capacity within the meaning of the act. That decision is stated by Mr. Justice BRADLEY, in the opinion in Hennequin v. Clews, to have been 'not only followed, but approved, by the highest courts of several of the states.' Under section 5117, which is substantially a re-enactment of the provision of the act of 1841 in this regard, with the single additional provision that 'no debt created by fraud shall be discharged,' etc., this court, on the line of the same reasoning, has construed the word 'fraud,' as used in that section, to mean positive fraud, or fraud in fact,—involving moral turpitude or intentional wrong, as does embezzlement, and not implied fraud, or fraud in law; and hence it does not apply to a debt created by the purchase in good faith, from an executor, of bonds belonging to his decedent's estate at a discount, although such an act was held to be a constructive fraud. Neal v. Clark, supra. Nor does it include such fraud as the law implies from the purchase of property from a debtor with intent thereby to hinder and delay creditors in the collection of their debts. Wolf v. Stix, supra. Nor does it refer to a debt arising from the conversion by a party to his own use of bonds held by him merely as a collateral security for the payment of a debt, or the performance of a duty, and which he fails to restore after the payment of the debt or performance of the duty to the person who intrusted them to his keeping. Hennequin v. Clews, supra. In all these cases the defendant was held to be released by the subsequent discharge in bankruptcy. The decisions of the state courts in a great number and variety of cases, as shown by the citations in the brief of counsel for plaintiff in error, are in accord with the construction, by this court, of these clauses of the section in question, and have applied it to cases of agents, factors, commission merchants, and bailees who have failed to account for proceeds of the sale of property committed to them for that purpose, or moneys received upon collections intrusted to them. The finding of the jury that the agreement of the plaintiff in error was to collect the money and keep it until the defendants in error called for it cannot be taken to imply an obligation to keep and deliver to them the identical bills or coins. Even if the agreement between the parties might be construed as creating a trust in some sense, it was clearly not such a trust as comes within the provisions of the bankrupt act. Nor can the subsequent mingling by the plaintiff in error of the money collected with his own constitute the actual, positive fraud contemplated by that act, but only such an implied fraud as is involved in most or all cases of conversion of property or of breach of contract. The judgment of the supreme court of Vermont is in conflict with the principles laid down by the decisions of this court, as well as the general drift of those of the several state courts, and is therefore reversed, and the case is remanded to the court below, with an instruction to grant a new trial, and to take such further proceedings as may not be inconsistent with this opinion.
132.US.655	Plaintiff imported into the United States a quantity of iron advertising or show cards of various sizes. 'They were sold here for advertising purposes, to hang on walls, or in windows, in public places, and contained generally the name of the person or of the article advertised and some picture or ornament, which were printed from lithographic stones upon the plates of sheet iron in the same way that lithographing is done upon paper or cardboard. The principal part of the value of the completed card was in the printing done upon the material, and not in the material itself; Held, that they were subject to a duty of 45 per cent ad valorermi as manufactures, etc., not specially enumerated or provided for, composed wholly or in part of iron, under the last paragraph of Schedule C, Rev. Stat. § 2502, as enacted March 3, 1883, 22 Stat. 501, c. 121, and not as printed matter not specially enumerated or provided for, under the first paragraph of Schedule M in the same amending act.	We concur with the district judge in his conclusion that these iron show-cards were properly assessed as manufactures of iron, not specially enumerated or provided for in the act of March 3, 1883, and as such liable to duty under the last paragraph of Schedule C of section 2502 of the Revised Statutes, as enacted by that act, which reads: 'Manufactures, articles, or wares, not specially enumerated or provided for in this act, composed wholly or in part of iron, steel, copper, lead, nickel, pewter, tin, zinc, gold, silver, platinum, or any other metal, and whether partly or wholly manufactured, forty-five per centum ad valorem.' 22 St. 501. This is conceded by plaintiff in error, unless the articles were dutiable as 'printed matter' under the first paragraph of Schedule M of that section, (22 St. 510,) which is quoted in the statement of facts, and given hereafter. The diligence of counsel has furnished us with definitions, from many dictionaries and encyclopedias, of the words 'print,' 'printing,' and 'printed matter,' from which it is argued that the essential feature of printing is not the substance on which the printing is done, but the mode of making the impression. But the question here is not whether these iron show-cards, being lithographed or printed, could be styled 'printed matter' within the meaning of these words as given by lexicographers, but whether they were 'printed matter' as those words are used in Schedule M of the act of March 3, 1883. There was no evidence that signs of this kind were known commercially, or by printers, book-binders, dealers in books, pamphlets, or periodicals, or others, as 'printed matter.' In Arthur v. Moller, 97 U. S. 365, certain chromo lithographs printed from oil-stones upon paper were held subject to the duty levied upon printed paper; and Mr. Justice HUNT, in delivering the opinion of the court, says that 'the term 'print' or 'printing' includes the most of the forms of figures or characters or representations, colored or uncolored, that may be impressed on a yielding surface;' and that 'the pictures in question were printed from lithographic stones, by successive impressions, each impression giving a different portion of the view and of a different color. Like other pictures, they are made and used for the purpose of ornament. Equally with engravings, copper plates and lithographs, they are printed and properly fall within the statutory designation of 'printed matter.' If further argument were needed, it would be found in the principle noscitur a sociis. 'Printed matter' is named in the list with engravings, maps, charts illustrated papers. With these printed pictures are naturally associated.' Undoubtedly the words 'printed matter' are popularly considered as applying to paper or some similar substance commonly used to receive the impression of letters, characters, or figures by type and ink, and reference to the legislation of congress demonstrates that the phrase was used in the schedule in question in this sense. By section 18 of the act of March 2, 1861, fixing duties on imports, etc., a duty of 15 per centum ad valorem was levied 'on all books, periodicals, and pamphlets, and all printed matter and illustrated books and papers.' 12 St. 187. In section 94 of the act of June 30, 1864, appears this paragraph: 'On all printed books, magazines, pamphlets, reviews, and all other similar printed publications, except newspapers, a duty of five per centum ad valorem.' 13 St. 267. By Schedule M, 'Sundries,' of section 2504 of the Revised Statutes, it is provided: Books, periodicals, pamphlets, blankbooks, bound or unbound, and all printed matter, engravings, bound or unbound, illustrated books and papers, and maps and charts, twenty-five per centum ad valorem.' Rev. St. (2d Ed.) 474. In section 2502, tit. 33, Rev. St., as enacted by the act of March 3, 1883, the first paragraph of the schedule headed 'Schedule M, Books, Papers, Etc.,' reads: 'Books, pamphlets, bound or unbound, and all printed matter not specially enumerated or provided for in this act, engravings, bound or unbound, etchings, illustrated books, maps, and charts, twenty-five per centum ad valorem.' 22 St. 510. And then follow nine paragraphs, making ten in all in this schedule, relating to blank-books, bound or unbound, and blank-books for press copying; paper, sized or glued, suitable only for printing paper; printing paper, unsized, used for books and newspapers exclusively; manufactures of papers not specially enumerated; sheathing paper; paper boxes, and all other fancy boxes; paper envelopes, paper hangings, and paper for screens or fire-boards, paper antiquarian, demy drawing, elephant, foolscap, imperial, letter, note, and all other paper not specially enumerated or provided for in the act; pulp, dried, for paper-makers' use. It is very clear that these iron signs were not dutiable under a schedule headed 'Books, Papers, Etc.,' and confined throughout to the subject-matter thus indicated. If a duty had been imposed on iron show-cards eo nomine, the latter would not have been dutiable as 'manufactures of iron,' any more than 'braces and suspenders,' though made of rubber, were dutiable as 'manufactures of rubber,' (Arthur v. Davies, 96 U.S. 135;) or 'artificial flowers,' though made of cotton, were dutiable as 'manufactures of cotton,' (Arthur v. Rheims, Id. 143.) The specific designation would prevail over the general words, which otherwise embraced the article. In Arthur v. Jacoby, 103 U. S. 677, decorated porcelain ware being subject to one rate of duty and pictures to another, it was held that where it appeared that certain pictures had been painted by hand on porcelain, which, it was proved, 'did not in itself constitute an article of china-ware, being manufactured simply as a ground for the painting, and not for any use independent of the paintings,' they were taxable as pictures, and not as decorated porcelain ware. The question decided, as stated by Mr. Chief Justice WAITE at the close of the opinion, was that 'the goods were not china-ware, but paintings.' But here the articles were clearly manufactures of iron, and were not 'printed matter,' within the meaning of the clause relied on by the plaintiff, because those words, as there used, applied only to articles ejusdem generis with books and pamphlets, which iron show-cards were not. We find no difficulty in concluding that the case was properly decided, and the judgment is affirmed.
129.US.70	On the proofs the court holds that there has been no infrmgement of the appellant's patent by the appellees. THE case is stated in the opinion.	This is a suit in equity, brought in the circuit court of the United States for the Eastern district of Virginia, by the appellant against the appellees, founded on an alleged infringement by them of letters patent No. 265,733, granted to appellant, October 10, 1882, upon an application filed June 24, 1882, for an improvement in drawers. The alleged infringement consisted in appellees' placing on drawers manufactured by them a patch extending down the front and lapping the seam of the crotch by at least half an inch, which process of re-enforcing the garment, it was alleged, was the invention of the appellant. The bill avers that 'the defendants, Henry T. Miller and William Mitchell, both of the city of Richmond, in the county of Henrico and state of Virginia, and citizens of the said state of Virginia, constituting the firm of Henry T. Miller & Co., doing business at Richmond, in the county, state, and district aforesaid, * * * are now using said patented improvement or improvements in some parts thereof substantially the same in construction and operation as in the letters patent mentioned, and in violation of his rights have made, used, and vender within the Eastern district of Virginia * * * large quantities of drawers described and claimed in the letters patent aforesaid,' etc. The answer of the defendants, in their own separate names, with the firm name, precisely as they are stated by the bill, in response to complainant's interrogatories, admits that they are residents of Richmond, Va., and engaged in the business of the manufacture and vending of drawers for the clothing trade in that city. The averments of the answer, material to this inquiry, are 'that drawers, as re-enforced as described in letters patent of plaintiff, had been made and in public use and on sale by sundry and divers persons for many years prior to plaintiff's application;' that they, the defendants, 'have been manufacturing one particular kind, and only one particular kind, of re-enforced drawers for more than five years hitherto continuously, a specimen of which drawers, manufactured by them, is filed as Exhibit A,' etc., 'and that these are the only kind of reenforced drawers that have been manufactured by them, or either of them, during the last five years;' and that, 'even if the drawers manufactured by them are either identically or substantially the same as those manufactured by the complainant, he is entitled to no relief whatever against them, because these respondents are prepared to prove that Henry T. Miller & Co., and Henry T. Miller have hitherto continuously for over five years manufactured the identical re-enforced drawers filed as Exhibit A, and that for over four years prior to the application for said patent they used and sold re-enforced drawers of the pattern and design of those now filed as Exhibit A, and none other.' The circuit court dismissed the bill, and an appeal from that decree of dismissal brings the case here. It is contended by the appellant that the answer of the defendants below did not contain a sufficient notice, under the statute, of the defense of want of novelty and two years' public use, in that it did not state the names and places of residence of the persons by whom and where it was used. The object of this statutory requirement is to apprise the plaintiff of the nature of the evidence which he must be ready to meet at the trial. This object is substantially and fully accomplished by the pleadings in this case, and we decline to disturb the action of the court below, overruling the motion made at the hearing to strike out the testimony of the witnesses for the defense, who testified to the prior use of the patented article. We do not deem it necessary to consider the question whether the patent of the appellant is for a new and useful invention within the meaning of section 4886 et seq., Rev. St., inasmuch as it is the opinion of this court that there has been no infringement of it in this case by the appellees. It is satisfactorily shown by the evidence in the record that for more than two years prior to the application for the patent in question the appellees had been manufacturing, at their place of business at Richmond, Va., garments identical in pattern with those that are now alleged to infringe appellant's patent. The decree of the circuit court is affirmed.
132.US.210	A judgment for damages and costs was recovered m a Circuit Court of the United States, on bonds and coupons issued by a municipal corporation. In answer to an alternative writ of mandamus issued three and one-half years afterwards, for the levy of a tax to satisfy the judgment, it was set up, in bar, that the original judgment was void because the Circuit Court had no jurisdiction of the subject matter of the action, on the ground that the bonds were not payable to order or bearer. A peremptory writ was granted by a judgment, to review which a writ of error was taken. A motion to dismiss the writ was made, united with a motion to affirm. Held, (1) Although there was no ground for contending that this court had no jurisdiction, yet the reasons assigned for taking the writ of error were frivolous, and it was taken for delay only; (2) The principal of the bonds was payable to bearer(3) The judgment ought to be affirmed, (4) The proceeding by mandamus being in the nature of execution, if the prosecution of writs of error to the execution of process to enforce judgments were permitted when no real ground existed therefor, such interference might become intolerable, and this court in the exercise of its inherent power and duty to administer justice, ought, independently of subdivision 5 of rule 6, to reach the mischief by affirming the action below; (5) No different interpretation is put on that subdivision from that which has hitherto prevailed.	Wilbur F. Trader recovered a judgment in the circuit court of the United States for the district of Kansas against the city of Chanute, on the 4th of December, 1885, for $7,702.12, damages and costs, on certain bonds and coupons issued July 1, 1872, by the city of Tioga. Each bond stated that the city of Tioga was 'indebted to the Tioga Flouring-Mill Company in the sum of five hundred dollars, lawful money of the United States, with interest from the date hereof, at the rate of ten per cent. per annum, as provided by law, and payable semi-annually, as per interest coupons hereto attached; the principal being due in ten years from date hereof, and with the interest thereon payable at the office of the Farmers' Loan and Trust Company, in the city of New York, to the bearer.' On the 27th of July, 1888, Trader served a notice on the city of Chanute, addressed to the mayor and councilmen of the city, requesting them to levy a tax on the taxable property within the city to pay and satisfy the judgment. It does not appear that any execution has been issued on the judgment. On the 9th of July, 1889, Trader applied to the circuit court for a writ of mandamus, requiring the officers of the city to levy a tax to satisfy the judgment. An alternative writ was issued on that day. In answer to the writ, the city set up, by way of plea in bar, that the original judgment was void because the circuit court had no jurisdiction of the subject-matter of the action, as appeared from the petition in it, which set forth a copy of one of the bonds sued on. The point urged was that the bond was not payable to the Tioga Flouring-Mill Company or order, nor to bearer, and that only the interest was payable to the bearer. On a hearing on the writ and return, the circuit court, on October 14, 1889, rendered a judgment granting a peremptory writ commanding the officers of the city to levy the tax. A bill of exceptions was allowed, and the city has brought a writ of error. The defendant in error now moves to dismiss the writ of error, and unites with it a motion to affirm the judgment. Subdivision 5 of rule 6 of this court was first promulgated November 4, 1878, (97 U. S. vii.) It reads as follows: 'There may be united, with a motion to dismiss a writ of error or appeal, a motion to affirm, on the ground that, although the record may show that this court has jurisdiction, it is manifest the appeal or writ was taken for delay only, or that the question on which the jurisdiction depends is so frivolous as not to need further argument.' At the same term, in Whitney v. Cook, 99 U. S. 607, this court, speaking by Chief Justice WAITE, said that the rule implied that there should appear on the record 'at least some color of right to a dismissal.' He added: 'Our experience teaches that the only way to discourage frivolous appeals and writs of error is by the use of our power to award damages, and we think this a proper case in which to say that hereafter more attention will be given to that subject, and the rule enforced both according to its letter and spirit. Parties should not be subjected to the delay of proceedings for review in this court without reasonable cause, and our power to make compensation to some extent for the loss occasioned by an unwarranted delay ought not to be overlooked.' The practice of not entertaining a motion to affirm, unless there is some color of right to a dismissal, has since been frequently sustained by this court. Hinckley v. Morton, 103 U. S. 764; School-Dist. v. Hall, 106 U. S. 428, 1 Sup. Ct. Rep. 417; Davies v. Corbin, 113 U. S. 687, 5 Sup. Ct. Rep. 696; Walston v. Nevin, 128 U. S. 578, 9 Sup. Ct. Rep. 192; New Orleans v. Construction Co., 129 U. S. 45, 9 Sup. Ct. Rep. 223; The Alaska, 130 U. S. 201, 9 Sup. Ct. Rep. 461. In Micas v. Williams, 104 U. S. 556, there was a motion to affirm united with a motion to dismiss a writ of error. The affidavits in opposition to the latter motion showed jurisdiction, as to the amount involved, though on the record as it stood when the motion was made there was color of right to a dismissal. But the court affirmed the judgment on the ground that the writ was taken for delay only. In The S. C. Tryon, 105 U. S. 267, there was a motion to affirm a decree united with a motion to dismiss the appeal in an admiralty suit. The ground for making the motion to dismiss was that there was no bill of exceptions, but only a finding of facts and conclusions of law. The court overruled that ground, but it is difficult, from the report of the case, to see what color of right there was to a dismissal; yet it affirmed the decree on a consideration of the findings of fact. In Swope v. Leffingwell, Id. 3, there was a motion to affirm united with a motion to dismiss a writ of error to a state court. The motion to dismiss was made on the ground that there was no federal question involved. The court held that it had jurisdiction, but affirmed the judgment on the ground that the case on the merits was governed by previous decisions. In the present case there does not appear to be any ground for contending that this court has no jurisdiction, yet we are entirely satisfied that the reasons assigned for taking the writ of error are frivolous, and that it was taken for delay only. The principal of the bonds is payable to bearer as well as the interest. The principal is stated to be due in 10 years, and, with the interest, to be payable to the bearer. This is too plain for discussion, and disposes of the point that the original payee in the bonds was a citizen of Kansas, and thus of the same state with the debtor, and could not have sued on the bonds in the circuit court, and so the plaintiff could not. But without putting a different interpretation on subdivision 5 of rule 6 from that which has hitherto prevailed, we are of opinion that the judgment in the present case must be affirmed. A proceeding by mandamus to compel the levy of a tax to pay a judgment is in the nature of execution. The rights of the parties to the judgment, in respect of its subject-matter, were fixed by its being rendered. If the prosecution of writs of error to the execution of process to enforce judgments is permitted when no real ground exists therefor, such interference might become intolerable. This court, in the exercise of its inherent power and duty to administer justice, ought, independently of subdivision 5 of rule 6, to reach the mischief by affirming the action below This is a proper case for doing so. Judgment affirmed.
131.US.246	A contract between A, a subscriber to the stock of a proposed incorporated company, and B, another subscriber to the same, made without the knowledge of the remaining subscribers, by which A agrees to purchase the stock of B at the price paid for it, if at a specified time B elects to sell it, is not contrary to public policy, and can be enforced against A if made fairly and honestly, and if untainted with actual fraud.	This is an action of assumpsit, brought in the court below by J. Pierpont Morgan, a citizen of the state of New York, against Thomas Struthers and one Thomas S. Blair, citizens of Pennsylvania, to recover the sum of $26,282.19, with interest, on a certain contract in writing, more particularly described hereafter. The defendant Blair not having been served with process, the case proceeded against Struthers alone. The material facts in the case are substantially as follows: In the year 1873, Thomas Struthers, Thomas S. Blair, an Morrison Foster were the owners of certain patents for the manufacture of iron and steel, and also of certain real estate and works erected thereon, to be used for such manufacture, situate in Pittsburgh, Pa. They then procured an incorporation under the laws of the state of New York, in the name of the 'Blair Iron & Steel Company,' with a capital of $2,500,000, divided into 25,000 shares of $100 each, the stock being paid up in full by a transfer to the company of the patents and the works at Pittsburgh. The entire amount of the capital stock was issued to the incorporators on or about April 12, 1873. With a view of raising a working capital, Blair, Struthers, and Foster had issued the following prospectus: 'New York, January 20, 1873. The capital stock of the Blair Iron and Steel Company is 25,000 shares, of $100 each,—$2,500,000. This capital has been paid up by the transfer of the patents for the Blair process and the works at Glenwood, Twenty-Third ward of Pittsburgh, Pa., to the company, (the deed for the Glen wood property to be made as soon as an empowering act can be obtained from the Pennsylvania legislature, which we have bound ourselves to procure,) and the whole stock of said company issued to us in payment therefor. We have agreed to place in the hands of General A. S. Diven, as trustee, 9,000 shares of this stock, to be used as working capital for the company, subject to the order of the board of trustees of said company, except $50,000 of the proceeds thereof first to be paid to us by said trustee. The trustees of the company have, with our consent, ordered a sale of 6,000 of said shares, for the purpose of raising a present working capital, and paying said $50,000, the minimum price to be $50 per share; and said trustee, with the approbation of the board of trustees, now offers said 6,000 shares at said minimum price of $50 per share, to be paid for as follows, viz.: One-third part thereof as soon as the whole 6,000 shares shall be subscribed for, and the remainder in such installments as the board of trustees may call for the same for the purposes of the business, the certificates to be delivered when the whole shall be paid. THOMAS S. BLAIR. T. STRUTHERS. MORRISON FOSTER, By his attorney, T. STRUTHERS. We, the undersigned, hereby subscribe to the number of shares of the above six thousand shares set opposite to our names, respectively, to be paid for according to the terms above set forth; but this subscription not to be binding until the whole six thousand shares shall have been reliably subscribed.' A number of persons subscribed to this paper without any other condition, but Morgan, the plaintiff, demanded and obtained from the promoters of the enterprise a further stipulation or agreement, the existence of which was not made known to others who signed the original paper, some before and some after Morgan, and which additional stipulation was as follows: 'Whereas, J. Pierpont Morgan has purchased four hundred shares of the stock of the Blair Iron and Steel Company, at the price of fifty dollars per share, and sold by A. S. Diven, trustee of said company: now we, the undersigned, in consideration of one dollar to us in hand paid, the receipt whereof is hereby acknowledged, do hereby agree that if, at the end of one year from this date, said J. Pierpont Morgan shall desire to sell the said shares at the price paid for the same by him, we will purchase the same at that price, n d pay to him the amount paid by him on the same, with interest at the rate of seven per cent. per annum. THOS, S. BLAIR. T. STRUTHERS. New York, April 4, 1873.' At the end of the year the agreement of purchase was renewed for another year, and at the expiration of that year it was again renewed, the following agreement being entered into: 'NEW YORK, March 22, 1875. In consideration of the waiver by J. Pierpont Morgan of the right of election to sell to us the four hundred shares of stock in the Blair Iron and Steel Company, (subscribed and paid for by him,) as he was entitled to do by agreement with us in 1873, renewed and extended, by agreement of 1874, to April 4, 1875, we do hereby agree that his right to do so shall be extended for another year, vix., to April 4, 1876. If he shall at that time elect to sell to us the four hundred shares so subscribed and held by him, we will receive and pay for the same the amount paid by him therefor, with interest at the rate of seven per cent. per year from the date of the payment by him of the respective installments thereon; and, as collateral security for the performance by us of this, our agreement, we have placed in the hands of Joseph W. Drexel, Esq., four hundred shares of the stock of the said Blair Iron and Steel Company, to be held by him in trust for that purpose. T. STRUTHERS. T. S. BLAIR.' On the 20th of March, 1876, Morgan notified Blair and Struthers that he desired to avail himself of the terms of the agreement entered into between them, and on the 4th of April of that year tendered them the stock referred to in the agreement. The defendants having failed and refused to comply with the terms of the contract of repurchase, Morgan, on the 1st of March, 1882, brought this action, averring in his declaration the foregoing facts. The defendant in his answer admitted the making of the contract declared upon, and all the facts alleged by the plaintiff in support of his claim; but set up, by way of defense, two propositions, either of which he claimed was sufficient to defeat the plaintiff's case, viz.: First, the contract sued on was invalid, and against public policy, because made secretly with one of a number of persons who had subscribed together, upon the same express terms and conditions, for stock in a manufacturing corporation, whereby the plaintiff had sought to procure to himself an advantage withheld from the other subscribers; and, second, the defendant is not precluded from setting up the invalidity of such contract because he was a party to it. The case was tried by a jury, which, under instructions from the court, found in favor of the defendant, and judgment was rendered accordingly. To reverse that judgment this writ of error is prosecuted. John Dalzell, for plaintiff in error. George Shiras, Jr., and R. Brown, for defendant in error. LAMAR J. Several exceptions were taken during the progress of the trial to the rulings of the court in excluding evidence offered by the plaintiff, to its refusal to give instructions requested by the plaintiff, and to its general charge to the jury, which are embodied in 12 assignments of error. It is not necessary to discuss them seriatim, as the main contention relates to the correctness of the instructions given by the circuit court to the jury. In order to determine the principle on which the instructions rest, it will be useful to ascertain the points incidentally connected with the case about which there is no dispute. First. It is conceded, and the court so charged the jury, correctly, as we think, that the contract made by Morgan with Struthers, touching the repurchase of the stock, standing by itself, was a perfectly fair and honest one, in which there was no vice inherent that would relieve the person making it from its obligation. If, therefore, its validity or binding force is impaired, it must be because of its extrinsic effect by reason of the relations of the parties to the other stockholders in the corporation. It is also conceded that, as to these stockholders, no actual fraud or deceit was prat iced in the making of the contracts sued upon. This is virtually the ground upon which the court refused to admit evidence offered by the plaintiff for the avowed purpose of showing the good faith of the transaction as to the other subscribers. It said: 'It is not necessary for the defendants, to sustain their defense, to show actual fraud. If the tendency of such things is to operate as a fraud upon others, that is the basis of the rule.' It is also a fact, undenied and undeniable, that the plaintiff strictly complied with all the terms and stipulations expressed in the prospectus, and in the contract of subscription, by paying into the treasury of the corporation the entire amount of his subscription. It should also be considered as conceded—for there is nothing in the pleadings, nor in the evidence, nor in any of the rulings of the court, nor in the argument of counsel, to the contrary—that he did not enter into any secret agreement with the corporation or any other person that he should not be required to pay the amount he had subscribed; and, finally, the court more than once gives strong intimation that there is no reason in equity, justice, or fair dealing why the defendant should not be made to comply with his obligation. On the other hand, it is conceded that the contract sued on was a collateral, optional contract, made at the time of plaintiff's subscription, which constituted the inducement to it, and was not made known to all the other subscribers to stock. The only question, then, presented for our consideration is, whether the collateral contract, perfectly fair and honest in itself, and untainted with any actual fraud upon any person, entered into by a subscriber of stock with other subscribers, to the effect that they will purchase the same, and pay to him the amount paid by him, if at a time specified he chooses to sell the same, is contrary to public policy, and cannot be enforced against the party to it. Upon this question the view of the court below is stated very explicitly. It says: 'If others of the subscribers to the stock were not informed of the fact that plaintiff had obtained said agreement as a condition or part of his agreement to subscribe for the said stock, and that the existence of such accompanying agreement was not made known to others of said common subscribers, this said agreement was in the eye of the law a fraud upon the other subscribers who did not receive and were not informed of the existence of such agreement, and was contrary to the policy of the law, and the plaintiff cannot recover.' Again, in his general charge he repeats: 'Whatever may be our own views as to the honesty of such an attempt to defeat the enforcement of an honest contract, that is a consideration which you or I have nothing to do with. If you find that the beneficial arrangement set up and sought to be enforced in this suit was not made known to all the subscribers to that stock, and they were not afforded an opportunity to avail themselves of like security, that arrangement was void, and cannot be enforced.' We cannot concur in this conclusion. We are not prepared to affirm that there is a public policy which operates such a restraint upon the transfer of stock in a corporation as to render the contract in question, conceded to be valid and fair in itself, fraudulent as to the co-subscribers with the plaintiff for the 6,000 shares sold by the company, and to render it in valid against the party to it, who, it is admitted, has no equity or justice in his favor. Nor do we assent to the proposition upon which this conclusion rests. That proposition is that, when a man purchases or subscribes to shares of stock in an incorporated joint-stock company, there is upon him, in addition to the express terms of the subscription contract, an implied obligation, incident to the common enterprise, which restrains him from making any engagement with other individuals to secure his own stock against risk, unless the other subscribers are informed of it, and put upon an equal footing as to sc h security. One essential feature of an incorporated joint-stock company is the right of each stockholder, without restraint, to sell or transfer his shares at pleasure. Thomp. Liab. Stockh. § 210, and cases there cited. So well established is this right that a by-law of a bank putting restrictions upon the transferability of stock in the hands of its members has been held void as being in restraint of trade. Moore v. Bank, 52 Mo. 377. Even where the charter gives the corporation the power to regulate transfer of stocks, it has been held that this power does not include the authority to restrain transfers. Chouteau Spring Co. v. Harris, 20 Mo. 382, citing Quiner v. Insurance Co., 10 Mass. 476, and numerous other authorities. Counsel for defendant urges that, notwithstanding this right to make an absolute sale of his stock belongs to each subscriber, the policy of the law forbids one of them, whose act of subscription may be held out as an inducement for others to subscribe, from making a contract of future sale with a view to secure his investment, and renders such a contract void, because many co-stockholders 'may have been chiefly induced to subscribe by a knowledge that so prominent and successful an operator was willing to risk his money in such an adventure, and who, had they been told that he had exacted a private security or guaranty which availed to give him the benefit of both the experiment in business and of getting back his money with interest, if he did not succeed, would assuredly either have refused to subscribe, or have demanded a similar guaranty. Moreover, they had a right to suppose that the new firm was to have the countenance of Mr. Morgan, and probably his assistance in the future.' This is a palpable misconception of the nature of the transaction. There was nothing in the prospectus, or in the subscription contract, or in the nature of the enterprise, to justify such a presumption or expectation on the part of the other stock subscribers. It is just in this respect, especially, that an incorporated joint-stock company differs from an ordinary co-partnership. In the latter, the individual members of the firm are presumed to, and in general actually do, contribute to the common enterprise, not only their several shares of partnership capital, but also their individual experience, skill, or credit, no member having the right to sell out his interest or to retire from the firm without the consent of the copartners, and, if he does either, the act amounts to a dissolution of the partnership. Pars. Partn. § 171. The very reverse, as we have said, is the case of a joint-stock corporation, in which each stockholder, whether by purchase or original subscription, has the right, unless restrained by the charter or articles of association, to sell and transfer his shares, and, by transferring them, introduce others in their stead. It is also urged that 'the other subscribers had a right to presume that Mr. Morgan went into the common enterprise upon the same terms with themselves.' This proposition is true, so far as those terms are prescribed in the charter, the prospectus, and the contract of subscription; but it is also true that each of those stockholders had the equal right to sell, or agree to sell, that stock whenever and to whomsoever he chose, such stock being personal property, and subject to any disposal he might choose to make of it, and that this right belonged none the less to Morgan on account of his prominence and known skill as an operator, than it did to any other member of the corporation. We have read with care all the authorities cited by counsel for defendant in error to support the claim that the contract in question is, in the eye of the law, fraudulent and void. Those which relate to contracts connected with subscriptions of stock are simply illustrative, in different forms, of a doctrine settled in a great number and variety of decisions, that a corporation has no legal capacity to release an original subscrie r to its capital stock from payment of it, in whole or in any part; and that any arrangement with him by which the company, its creditors or stockholders, shall lose any part of that subscription, is ultra vires, and a fraud upon creditors and the co-subscribers. Burke v. Smith, 16 Wall. 390, 395; Railroad Co. v. Bowser, 48 Pa. St. 29; Green's Brice, Ultra Vires. This doctrine rests upon the principle that the stock subscribed, both paid and unpaid, is the capital of the company, and its means of carrying out the object for which it was chartered and organized. All these cases fall within this principle. In each of them the agreement declared void, had it been carried out, would have diminished the common fund, which is a trust fund for the benefit of the general creditors of the corporation, the stockholders, and all others having an interest therein, and would have been violative of the terms upon which the subscriptions had been expressly made, and under which the trust originated. The corporation would have been damaged in its capital by the loss of the subscriptions, and the co-subscribers would have been damaged by the lessening of their common trust fund. As we have seen, no feature of damage to the corporation, actual fraud, or violation of contract, exists in this case. The contract sued on, if specifically carried out, would have simply resulted in what all agree lay within the power of each subscriber at the time of making his subscription,—a transfer of his stock, and the introduction of other stockholders in his stead. Counsel for defendant has cited cases of composition between an insolvent debtor and his creditors, where one creditor has secured, by a secret arrangement, either with the insolvent or some other person, terms more favorable to himself than the composition agreement provided for all of the other creditors joining therein. In the English cases the doctrine is carried to the fullest extent, that such secret arrangements are utterly void, even as against the party with whom the arrangement was made. The American decisions, while perhaps not going to the extent of the English decisions, clearly assert the illegality of such arrangement. 1 Story, Eq. Jur. §§ 378, 379; White v. Kuntz, 107 N. Y. 518, 14 N. E. Rep. 423. But we think that the analogy between the cases of composition agreements and those of stock subscriptions is remote, and that the decisions as to the former are not applicable to this case. The relations of composition creditors, either to the insolvent's estate or to each other, are widely different from those which stock subscribers bear to the corporation and their co-subscribers. Upon the failure or insolvency of a debtor, his creditors stand together in a common relation of claims, proportionate to their amount and grade, upon an interest in his (the insolvent's) estate. 'The purport,' says Mr. Justice Story, 'of a composition or trust deed, in cases of insolvency, usually is that the property of the debtor shall be assigned to trustees, and shall be collected and distributed by them among the creditors, according to the order and terms prescribed in the deed itself; and, in consideration of the assignment, the creditors, who become parties, generally agree to release all their debts beyond what the funds will satisfy.' 1 Story, Eq. Jur. § 378. It is clear that any secret bargain by which one of these creditors obtains more than he composition deed gives, and more than he agrees under it to take, violates the equality which is the basis of the deed of settlement, and operates a gross fraud upon the creditors,—a fraud which the law, in its policy of precaution rather than by mere remedial justice, suppresses by depriving the parties of the fruit of their clandestine arrangements. It is not necessary to restate the widely different basis of the relation of stock subscribers to a joint-stock corporation and to each other, where each subscriber acts for himself, in the act of subscription, with the unret ricted right, in the exercise of vigilance and foresight, to make any arrangement for the security of his shares, provided he does not lessen the amount of his subscription, which constitutes part of the trust fund in which all the subscribers have an equal interest. We think this case perfectly clear on principle. We cite, however, as persuasive authority in support of our conclusion, the decision in Meyer v. Blair, 109 N. Y. 600, 17 N. E. Rep. 228, in which a contract identical in every material particular with the one we are considering, made between Blair and Struthers and Meyer, a subscriber to the 6,000 shares of stock, was considered by the court of appeals of the state of New York, and held valid and binding upon the parties to it. In that case the court says: 'The present case is not, we think, within the principle of the stock-subscription cases, or the cases of composition, to which reference has been made. The main object of the company in offering the stock for sale was to secure 'working capital,' as is shown by the prospectus. This object was known to the subscribers. If the subscription of the plaintiff was a pretense merely, or if the subscription had been accompanied by a secret agreement between the plaintiff and the company that he should be relieved from the subscription, or by which the terms of the purchase were materially changed to the disadvantage of the company, and for the advantage of the plaintiff, there might be ground for applying the rule declared in the subscription cases, and declaring the transaction to be a fraud on the other subscribers. * * * But there was no agreement between the company and the plaintiff, secret or otherwise, direct or indirect, except the agreement contained on the face of his subscription. The plaintiff, by his subscription, became bound to the company to take the shares subscribed for, and this agreement has never been discharged, or in any way impaired. The plaintiff remained bound by his subscription, notwithstanding the agreement with the defendants, as fully and completely as though the agreement with the defendants had never been made. Nothing has occurred to change, qualify, or limit his obligation to the company. The company sold the shares to secure 'working capital.' * * * The defendants were interested in setting the company afoot. They were the principal holders of its stock. * * * They sought out the plaintiff. On his declining at first to subscribe to the stock of the company, they offered him the inducement that they would take the stock off his hands within a year, at cost price, if he desired it. It appears that the same inducement was offered to other subscribers, but not to all. We think there was nothing illegal in the arrangement.' The conclusions to which we have come on the questions discussed dispense with any consideration of the other point presented by the plaintiff in error, viz., that the defendant should be estopped from setting up the invalidity of the contract sued on because he is a party to it; for, as we have found the contract valid and legal, the question of estoppel does not arise. For the foregoing reasons the judgment of the court below is reversed, and the cause remanded, with instructions to grant a new trial, and to take such further proceedings as shall be consistent with this opinion. So ordered.
130.US.301	Between the time when the Process Act of May 8, 1792, 1 Stat. 275, went into effect, and the passage of the act of June 1, 1872, 17 Stat. 196, (Rev. Stat. § 914,) it was always in the power of the Federal courts, by general rules, to adapt their practice to the exigencies and conditions of the times; but since the passage of the latter act the practice, pleadings and forms and modes of proceeding must conform to the state law and to the practice of the state courts, except when Congress has legislated upon a particular subject, and prescribed a rule. When a state statute prescribes a particular method of serving mesne process, that method must be followed; and this rule is especially exacting in reference to corporations. In the construction of a state statute in a matter purely domestic this court is always strongly disposed to give great weight to the decisions of the highest tribunal of the State. The provisions of the Revised Statutes of Wisconsin which require service of process generally on cities to be "by delivering a copy thereof to the mayor and city clerk," and the provision of the charter of the city of Watertown which requires such service to be made by leaving a copy with the mayor, have been held by the highest court of the State to be peremptory and to exclude all other officers, and it has also held that the fact that there is a vacancy in the office of mayor does not authorize service to be made upon some other substituted officer: and this court concurs with that court in this construction. Broughton v. Pensacola,9 3 U. S. 266, and Mobile v. Watson, 116 U. S. 289, differ essentially from this case. A motion to set aside a judgment if made, and service thereof made at the term at which the judgment is rendered, may be heard and decided at the next term of the court if properly continued by order of court.	The principal question in this case is whether the defendant, the city of Watertown, was served with process in the suit so as to give the court below jurisdiction over it. In order to understand the bearing of the facts of the case, it will be necessary to give a brief abstract of the laws of Wisconsin which relate to it, and these are mostly to be found in the charter of the city of Watertown, and the acts supplementary thereto. The state laws are referred to because they govern the practice of the federal courts in the matter under consideration. By the fifth section of the act of June 1, 1872, (Rev. St. § 914,) it is declared that 'the practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held.' Were it not for this statute, the circuit courts themselves could prescribe by general rule the mode of serving process on corporations as well as on other persons. By the temporary process act of September 29, 1789, (1 St. 93,) if not otherwise provided, the forms of writs and executions (except their style) and modes of process in the circuit and district courts in suits at common law were directed to be the same as in the supreme courts of the states respectively. By the permanent process act of May 8, 1792, (1 St. 275,) it was enacted that the forms of writs, executions, and other process, and the forms and modes of proceeding, in suits at common law, should be the same as directed by the act of 1789, subject to such alterations and additions as the said courts should deem expedient, or to such regulations as the supreme court of the United States should think proper by rule to prescribe to any circuit or district court. So that the practice in United States courts in the old states was made to conform to the state practice, as it was in 1789, subject to alteration by rule of court. In 1828 a law was passed adopting for the federal courts in the new states, admitted since 1789, the forms of process, and forms and modes of proceeding, of the highest courts of those states respectively, as then existing, subject to alteration by the courts themselves or the supreme court of the United States. 4 St. 278. By the act of August 1, 1842, the provisions of the act of 1828 were extended to the states admitted in the intermediate time. This review of the statutes shows that after 1792 it was always in the power of the courts by general rules to adapt their practice to the exigencies and conditions of the times. But the statute of 1872 is peremptory, and whatever belongs to the three categories of practice, pleading, and forms and modes of proceeding, must conform to the state law and the practice of the state courts, except where congress itself has legislated upon a particular subject, and prescribed a rule; then, of course, the act of congress is to be followed in preference to the laws of the state. With regard to the mode of serving mesne process upon corporations and other persons, congress has not laid down any rule; and hence the state law and practice must be followed. There can be no doubt, we think, that the mode of service of process is within the categories named in the act. It is part of the practice and mode of proceeding in a suit. Assuming, therefore, that the question is one to be governed by the local or state law, we proceed to give an abstract of the charter of Watertown, and such other laws of Wisconsin as bear upon the subject. We find this mostly made to our hand in the brief of the plaintiffs in error, taken from the consolidated charter of 1865, and it is as follows: 'Chapter 1, § 3. The said city shall be divided into seven wards. Sec. 4. The corporate authority of said city shall be vested in one principal officer, styled the 'mayor;' in one board of aldermen, consisting of two members from each ward, who, with the mayor, shall be denominated the common council. * * * Sec. 5. The annual election for ward and city officers shall be held on the first Tuesday of April of each year. * * * Sec. 6. * * * All elective officers, except * * * aldermen, shall, unless otherwise provided, hold their respective offices for one year, and until their successors are elected and qualified. Sec. 7. In the event of a vacancy in the office of mayor, alderman, * * * the common council shall order a new election. * * ' 'Chapter 2, § 2. The mayor, when present, shall preside over the meetings of the common council, and shall take care that the laws of the state and the ordinances of the city, within the corporation, are duly enforced and observed, and that all officers of the city discharge their respective duties. He shall appoint the police force. * * He shall have a vote in case of a tie only. * * * Sec. 3. At the first meeting of the common council in each year, or as soon thereafter as may be, they shall proceed to elect, by ballot, one of their number president; and in the absence of the mayor the said president shall preside over the meetings of the common council; and during the absence of the mayor from the city, or his inability from any cause to discharge the duties of his office, the president shall execute all the powers and discharge all the duties of mayor. In case the mayor and president shall be absent from any meeting of the common council, they shall proceed to elect a temporary presiding officer, who, for the time being, shall discharge the duties of mayor. The president, or temporary presiding officer, while presiding over the council or performing the duties of mayor, shall be styled 'acting mayor,' and acts performed by them shall have the same force and validity as if performed by the mayor.' 'Chapter 3, § 3. The common council shall have the management and control of the finances and of all the property of the city, and shall likewise, in addition to the powers herein vested in them, have full power to make, enact, ordain, establish, publish, enforce, alter, modify, amend, and repeal all such ordinances, rules, and by-laws for the government and good order of the city, for the suppression of vice and immorality, for the prevention of crime, and for the benefit of trade, commerce, and health. * * ' The common council is then given, in 26 sections, the usual powers which are commonly vested in the common councils of cities. 'Chapter 5, § 1. * * All funds in the treasury * * * shall be under the control of the common council, and shall be drawn out upon the order of mayor and clerk, duly authorized by a vote of the common council. * * ' 'Chapter 7, § 2. The common council shall by resolution levy such sum or sums of money as may be sufficient for the several purposes for which taxes are herein authorized to be levied. * ' 'Chapter 9, § 8. When any suit or action shall be commenced against said city the service thereof may be made by leaving a copy of the process with the mayor.' Chapter 61 of the Private and Local Laws of Wisconsin for 1867 provides: 'Section 1. Section seven of the first chapter of said act (an act to incorporate the city of Watertown, and the several acts amendatory thereof, chapter 233 of the General Laws of 1865) is hereby amended so that it shall read as follows: 'In the event of a vacancy in the office of mayor * * by death, removal, or other disability, the common council shall order a new election. * * ' In case of a vacancy in the office of alderman, the mayor may order a new election. * * Any city officer who shall resign his office shall file with the city clerk his resignation in writing, directed to the mayor, and such resignation shall take effect from the time of filing the same.' Chapter 204 of the Private and Local Laws of Wisconsin for 1871 provides: 'Section 1. The senior alderman of each ward of the city of Watertown shall constitute a board of street commissioners, who are hereby authorized, subject to the regulation and control of the common council, to audit and allow accounts against the city; * * * and, when allowed, orders on the treasury shall issue therefor; and in case of vacancy in the office of mayor, and there is no president of the common council to act, said orders may be signed by the chairman of said board and the city clerk. The city clerk shall be the clerk of said board, and shall keep record of its proceedings. The mayor may preside at the meetings of said board, and they may elect a chairman, who shall preside in his absence. * * * Said board shall have all the powers conferred upon the common council by the city charter in relation to streets and bridges and sidewalks. * * * Said board are also authorized to canvass the returns of all votes polled at the election for city or ward officers, and determine and declare the result of such election. Sec. 2. In case of vacancy in the office of alderman in any of the wards, the aldermen remaining in office shall have and exercise all the powers of street commissioners of the ward. The resignation of the mayor shall be in writing, directed to the common council or city clerk, and filed with the city clerk, and shall take effect at the time of filing the same.' Chapter 2, P. & L. Laws 1872, amended said chapter as follows: 'Section 1. The board of street commissioners of the city of Watertown shall have all the powers conferred by law upon the common council of said city, in relation to public schools, the police, fire department, nuisances, the regulation of slaughter-houses, and the public health, subject to the regulation and control of said common council: provided that said board of street commissioners shall have no power of levying taxes for any purpose whatever.' Chapter 46, Laws Wis. 1879, provides: 'Sec. 2. The board of street commissioners of said city, and the chairman of said board, shall have concurrent power with the mayor and common council of said city in the appointment of inspectors and clerks of election, and shall have all other powers conferred by law upon said mayor and common council, subject to the control of said common council, except the power of levying taxes, which they shall not have in any case whatever. Sec. 3. The common council of said city may, in its discretion, in any year, reduce the amount of city taxes levied under section three of chapter two hundred and four of the Private and Local Laws of 1871, and cause a less sum than is levied under said section to be placed in the tax-list for collection, for that year, for the several funds of the city.' By the Revised Statutes of Wisconsin of 1878 the manner prescribed by law for service of process on cities generally is 'by delivering a copy thereof to the mayor and city clerk.' Rev.St. § 2637. As there was a special law with regard to the city of Watertown, contained in its charter, requiring a copy to be left with the mayor, the general law probably did not supersede it. But as the mayor must be served with process, according to both laws, it can make no difference in the disposition of the case which is assumed to prevail. We have given these quotations more fully because the plaintiffs in error seemed to regard them as having some importance in the consideration of the case. The facts, as disclosed by the record, are, briefly, as follows: On the 3d of March, 1873, the plaintiffs, by their attorneys, sued out a summons against the defendant to answer a complaint for a certain money demand within 20 days after service of the summons. On the 6th of March, 1873, the marshal returned that he had that day served the summons on the city by delivering a copy of it to the city clerk and city treasurer. The defendant appeared specially by its attorney, and moved to set aside the said service on two grounds: (1) That the summons was not served on the mayor of the city as required by its charter; (2) that it was not served on three residents and freeholders of the city, as provided by the rules of the court. Thereupon the plaintiff filed an affidavit of the marshal, stating that at the time of service of the summons there was no mayor or acting mayor of said city, and had been none since the 14th day of February, 1873, (the writ being dated and issued the 3d day of March, 1873.) The defendant filed a counter-affidavit of the city clerk, stating that he had examined the records of the city and the proceedings of the board of street commissioners for the months of January, February, March, and April, 1873, and from these it appeared that F. Kusel, mayor of the city, resigned the office of mayor on the 30th of January; that from thence to the 24th of February, Street Commissioner Maak was the chairman of the board of street commissioners, and acting mayor of the city; that from the 24th of February to the 17th of March, Street Commissioner Prentice was temporary chairman of said board and acting mayor; and that on the 6th and 8th of March, 1873, said Prentice was acting mayor. Upon these affidavits the court, on the 8th of April, 1873, being of opinion that the summons had not been served upon the defendant in the manner prescribed by law, so as to give the court jurisdiction of the defendant, or so as to entertain any motion or proceedings in the case as against the defendant, or on its behalf, unless it appeared, made an order authorizing the clerk to return the summons to the marshal, to be served on the defendant according to law, or for such further action as the defendant (meaning the plaintiffs) might direct, conformably to law. It does not appear from the record that anything further was done for nearly 10 years. On the 23d of December, 1882, the marshal made return of service of said summons as follows: 'Served on the withinnamed, the city of Watertown, by delivering to Wm. H. Rohr, last mayor of said city; Henry Bieber, city clerk; Chas. H. Gardner, city attorney, and Thomas Baxter, last presiding officer (or president or ch'm'n) of the board of street commissioners of said city of Watertown, each personally a copy of the within summons, and by showing each of them this original summons, this 23d day of December, 1882, the office of mayor of said city being vacant, and there being no president of the common council, or presiding officer thereof, in office.' Thereupon, on June 19, 1883, plaintiffs filed their complaint setting out four bonds of $1,000 each, dated June 1, 1856, issued by the defendant to aid in the construction of the Watertown & Madison Railroad, and payable January 1, 1877, with 8 per cent. interest, payable semi-annually, upon presentation and surrender of the interest warrants or coupons attached to the bond; and setting forth also 84 of such coupons of $40 each, and demanding judgment for the amount of said coupons, $3,360, together with interest at 7 per cent. on the amount of each coupon from the time it became due. On the same day, June 19, 1883, plaintiffs filed an affidavit of no answer or appearance, caused the amount due on the 84 coupons to be computed by the clerk, and thereupon the court rendered judgment against the defendant by default for the amount so found due, to-wit, $7,762.44 damages and $49.70 costs. On the 27th day of July, 1883, the defendant appeared specially for the purpose, and served notice of motion to set aside the judgment and service on the ground that there had been no service of summons, and the court had no jurisdiction of defendant. The motion was based upon the affidavits of Henry Bieber, Thomas Baxter, and William H. Rohr, showing the following facts: (1) That William H. Rohr, designated in the marshal's return as the 'last mayor of said city,' was elected mayor at the annual municipal election, April 4, 1882, duly qualified, and entered upon the duties of the office; and thereafter, on April 10, 1882, duly resigned the office, in writing, directed to the common council, and filed his resignation with the city clerk, and had not since been mayor or acting mayor or president of the common council. (2) That Charles H. Gardner, named in the return, was never attorney for defendant in this action, or authorized to appear or to accept, admit or receive service for it therein. (3) That Thomas Baxter, designated in the return as 'last presiding officer (or president or ch'm'n) of the board of street commissioners of said city,' was the senior alderman of the Third ward, and as such a member of the board of street commissioners of the city, from April 10, 1882, to April 7, 1883. That but one meeting of said board was held in November, 1882, and that was on November 11. That, no mayor and no chairman elected by the board to preside at its meeting in the mayor's absence, being present, William F. Voss, senior alderman of the Sixth ward, and a member of the board, was chosen by a viva voce vote of the members present chairman pro tem., to preside at that particular meeting, which, after the transaction of its business, adjourned on said 11th day of November, 1882. That there were only three meetings of said board in December, 1882, to-wit, regular meetings December 4th and 18th, and a special meeting December 27th. That, there being no mayor nor chairman elected by the board to preside at its meetings in the mayor's absence, present at either of said meetings of December 4th or 27th, said Baxter was chosen at each said meeting by a viva voce vote of the members present chairman pro tem., to preside at that particular meeting, and that said meetings adjourned sine die, respectively, on December 4th and 27th, after the transaction of their business, and that said Baxter ceased to be such temporary chairman after the adjournment of said meetings. That the meeting of December 18th, being without a quorum, adjourned without the transaction of any business; and that no meeting of said board was held after December 27th until January 15, 1883. That besides said two meetings in December, said Baxter had alternated with other members of said board in being chosen in like manner and under like circumstances temporary chairman to preside at particular meetings of said board, but not at said meeting of December 18th, and that said board never elected, chose, or appointed him chairman thereof, or chairman to preside at its meetings in the mayor's absence, and that he never was such chairman or presiding officer, or anything more than merely chairman pro tempore of particular meetings as above. (4) That no copy of the summons had ever been delivered to the mayor of the city, and no summons in the action served on the city or mayor, or anything done towards service, except the delivery, December 23, 1882, of four copies, one each to the clerk, said Baxter, Gardner, and Rohr, and delivery March 6, 1873, of a copy to Tanck and Meyer, neither of whom was mayor, acting mayor, or president of the common council. The plaintiff submitted two affidavits of Mr. Winkler, by which it appears: (1) That the book in the city clerk's office containing the record of the proceedings of the common council and of the board of street commissioners for about five years before January, 1884, contains a record of the meeting of the common council, April 11, 1882, the last entry of which is, 'the common council adjourned sine die;' and that there is no further record of a common council meeting thereafter until after the municipal election in April, 1883; and that immediately following said record commences the record of a meeting of the board of street commissioners, April 11, 1882, which is followed by the record of other meetings of the board up to December 27, 1882, at each of which meetings some member of the board, either Commissioner Stacey, Commissioner Baxter, or Commissioner Voss was chosen chairman pro tem., and the record of the adjournment of each meeting is, 'on motion the board adjourned,' and at one of such meetings a resolution was passed retaining Mr. Daniel Hill 'to assist the city attorney in the suits commenced by E. Mariner.' (2) That accounts were audited at said meetings, and orders upon the city treasurer drawn therefor on a subsequent day, and signed by the commissioner who had been chosen chairman pro tem. at the meeting auditing the accounts; and that the common practice had been to hold meetings of the board evenings, prepare the orders on a subsequent day, but bearing the date of the meeting, and they were then signed by the city clerk and chairman pro tem. chosen at such meeting. (3) That the city clerk said that every alternate Monday had always, for a series of years, been the regular time for meetings of the common council, if there was one, and of the board of street commissioners, if there was none. (4) The affiant states further, upon information and belief, that for some years prior to 1879, and since, it has been the constant practice for the common council to hold one meeting after the election of aldermen, in April each year, and then all but the senior aldermen constituting the board of street commissioners would resign, and the mayor would also resign at the same time. On the hearing of the motion, May 16, 1884, the court made an order setting aside the judgment 'on the ground that the summons herein was not properly served on said defendant, and the court had no jurisdiction thereof.' To review the decision of the court in making that order the plaintiffs in error have sued out the present writ of error. The errors assigned are: (1) That the court had no jurisdiction or power to vacate the judgment at a subsequent term; (2) that the return of the marshal showed a valid service which was not changed by the affidavits. We have no difficulty with regard to the first question raised by the plaintiffs in error. It is clear from the record that the application to set aside the judgment was made at the same term it was rendered. The judgment was entered on the 19th day of June, 1883. During the same term, as we infer, (and it is not disputed,) namely, on the 27th of July, 1883, the defendant's attorneys gave notice of a motion to set aside the judgment, to be heard on the 28th of August, and annexed to the notice the affidavits on which they relied. Service of this notice and of the affidavits was acknowledged by the attorneys of the plaintiffs without objection. Why the motion was not argued on the 28th of August is not shown. It was probably postponed by agreement of the parties, or at the suggestion of the court. It did not actually take place until May, 1884, during the continuance of the December special term of 1883. The district judge certifies that by agreement of counsel and the consent of the court, it was then heard, together with a similar motion in the case of Worts and others v. The City of Watertown, some of the affidavits being used in both cases. From what appears on the face of the record it is to be presumed that the hearing of the motion was continued by consent, or by direction of the court, from the 28th of August until the following term, which was the December special term. The objection, therefore, of want of jurisdiction to set aside the judgment on account of lapse of time is without foundation in fact. As we have stated, the main question is whether there was legal service of process on the city. We may dismiss the attempt at service in March, 1873. It was set aside by the court as not made in the manner prescribed by law, so as to give the court jurisdiction, and the prosecution was dropped by the plaintiffs. No further steps were taken until after the lapse of nine years and nine months, when a second effort was made to serve the writ, upon which the present proceedings arose. It cannot be pretended that the action was pending during that long period, without further effort to procure a service of process. The common law provided a remedy in such cases, by a return of non est inventus, (or what was equivalent thereto,) and a reissue of the writ from term to term, until a service could be made, or by process of outlawry. The issue of successive writs kept the suit alive so as to prevent the running of the statute of limitations. But the making of one spasmodic and unsuccessful effort, and then abandoning the case for 10 years, cannot be regarded as having any such effect, unless aided by some statutory provision. No such provision has been cited. There is a provision in the Revised Statutes of Wisconsin (section 4240) which was evidently intended to meet such a case; but no attempt was made to comply with it. The section referred to is substantially as follows: 'An attempt to commence an action shall be deemed equivalent to the commencement thereof * * * when the summons is delivered with the intent that it shall be actually served; * * * if a corporation organized under the laws of this state be defendant, to the sheriff or the proper officer of the county in which it was established by law, or where its general business is transacted, or where it keeps an office for the transaction of business, or wherein any officer, attorney, agent, or other person upon whom the summons may by law be served, resides or has his office; or, if such corporation has no such place of business, or any officer or other person upon whom the summons may by law be served, known to the plaintiff, * * * to the sheriff or other proper officer of the county in which plaintiff shall bring his action. But such an attempt must be followed by the first publication of the summons, or the service thereof, within sixty days.' As the attempted service of the summons in 1873 can have no effect upon the solution of the present controversy, the question then arises whether the attempted service in December, 1882, was a sufficient and legal service. The court below held that it was not. We have already quoted the return of the marshal on that occasion. It appears from this return that he made the attempted service by delivering a copy of the summons to William H. Rohr, the last mayor of the city; a copy to Henry Bieber, city clerk; a copy to Charles H. Gardner, city attorney; and a copy to Thomas Baxter, the last presiding officer of the board of street commissioners of the city of Watertown; the office of mayor being vacant, and there being no president of the common council, nor presiding officer thereof, in office. Was this such a service upon the city as the law requires? It clearly was not, unless by the law of Wisconsin, the circumstances of the case were such as to dispense with a literal compliance with the charter. The charter requires service on the mayor of the city. No such service was made. There was no mayor in office at the time. The last mayor had resigned, and his resignation had taken effect. Service on him was of no more avail than service on an entire stranger. The case is different from those in which we have held that a resignation of an officer did not take effect until it was accepted or until another was appointed. In those cases either the common law prevailed, or the local law provided for the case, and prevented a vacancy. Such were the cases of Badger v. Bolles, 93 U. S. 599; Edwards v. U. S., 103 U. S. 471; Salamanca Tp. v. Wilson, 109 U. S. 627, 3 Sup. Ct. Rep. 344. In Badger v. Bolles the law of Illinois was in question, and it appeared that by the constitution of that state the officers elected were to hold their offices until their successors were elected and qualified. In Edwards v. U. S., the case arose in Michigan, and it was held that the common-law rule prevailed there, by which the resignation of a public officer is not complete until the proper authority accepts it, or does something tantamount thereto,—such as appointing a successor. In Salamanca Tp. v. Wilson, a case arising in Kansas, the treasurer of a township moved across the township line into another township. By the constitution of Kansas, township officers were to hold their offices one year from their election, and until their successors were qualified, and nothing was said either in the constitution or laws about residence or non-residence. We held that the removal did not necessarily vacate the office, and that service of summons on the treasurer was good. In the present case, it is true, the consolidated charter of the city of Watertown provides (chapter 1, § 6) that 'all elective officers except aldermen shall, unless otherwise provided, hold their respective offices for one year, and until their successors are elected and qualified.' But that provision has respect to ordinary cases. It cannot apply in a case of death, and does not apply in case of resignation; for by chapter 61 of the Private and Local Laws of 1867, relating to Watertown, (section 1,) it is declared that 'any city officer who shall resign his office shall file with the city clerk his resignation in writing, directed to the mayor, and such resignation shall take effect from the time of filing the same.' And by chapter 204 of the Private and Local Laws of 1871, relating to Watertown, it is declared (section 2) that 'the resignation of the mayor shall be in writing, directed to the common council or city clerk, and filed with the city clerk, and shall take effect at the time of filing the same.' These provisions of the statute law are decisive, and preclude the operation of any such rule as was recognized in Badger v. Bolles and Edwards v. U. S. The service upon Rohr, the last mayor, therefore, was of no force, and had no effect whatever. The same thing may be said of the service on Baxter, the last presiding officer of the board of street commissioners. The question then is reduced to this: Whether, in case the mayor has resigned, and there is no presiding officer of the board of street commissioners, (a body which seems to take the place of the common council of the city for many purposes,) service of process on the city clerk, and on a conspicuous member of the board, is sufficient. If the common law (which is common reason in matters of justice) were permitted to prevail, there would be no difficulty. In the absence of any head officer, the court could direct service to be made on such official persons as it might deem sufficient. But when a statute intervenes, and displaces the common law, we are brought to a question of words, and are bound to take the words of the statute as law. The cases are numerous which decide that where a particular method of serving process is pointed out by statute, that method must be followed, and the rule is especially exacting in reference to corporations. Kibbe v. Benson, 17 Wall. 624; Alexandria v. Fairfax, 95 U. S. 774; Settlemier v. Sullivan, 97 U. S. 444; Evans v. Railway Co., 14 Mees. & W. 142; Walton v. Salvage Co., 16 Mees. & W. 438; Brydolf v. Wolf, 32 Iowa, 509; Hoen v. Railroad Co., 64 Mo. 561; Insurance Co. v. Fuller, 81 Pa. St. 398. The courts of Wisconsin strictly adhere to this rule. Congar v. Railroad Co., 17 Wis. 478, 485; City of Watertown v. Robinson, 59 Wis. 513, 17 N. W. Rep. 542; City of Watertown v. Robinson, 69 Wis. 230, 34 N. W. Rep. 139. The two cases last cited related to the charter now under consideration. In the first case service was made upon the city clerk and upon the chairman of the board of street commissioners while the board was in session, in the absence of the mayor, who could not be found after dilligent search. The court, after referring to the provisions of the charter and the Revised Statutes on the subject, say: 'The question whether the Revised Statutes control as to the manner of service is not a material inquiry here, because both the charter and general provision require the services to be made upon the mayor, but no service was made upon that officer, as appeared by the return of the sheriff. The principle is too elementary to need discussion that a court can only acquire jurisdiction of a party, where there is no appearance, by the service of process in the manner prescribed by law.' In the last case (decided in 1887) service was made in the same manner as in the previous one, and the court say: 'When the statute prescribes a particular mode of service, that mode must be followed ita lex scripta est. There is no chance to speculate whether some other mode will not answer as well. * * * This has been too often held by this court to require further citations. * * * When a statute designates a particular officer to whom the process may be delivered, and with whom it may be left, as service upon the corporation, no other officer or person can be substituted in his place. * * * The designation of one particular officer upon whom service may be made excludes all others. * * * The temporary inconvenience arising from a vacancy in the office of mayor affords no good reason for a substitution of some other officer in his place, upon whom service could be made, by unwarrantable construction not contemplated by the statute.' It is unnecessary to look further to see what the law of Wisconsin is on this subject. It is perfectly clear that by that law the service of process in the present case was ineffective and void. The counsel for the plaintiff in error endeavor to avoid this conclusion by referring to the act of 1879, which declares that 'the board of street commissioners of said city, and the chairman of said board, shall have concurrent power with the mayor and common council of said city, in the appointment of inspectors and clerks of election, and shall have all other powers conferred by law upon said mayor and common council, subject to the control of said common council, except the power of levying taxes.' It is contended that this act gives to the chairman of the board of street commissioners the same power as the mayor has to receive service of process against the city. But the supreme court of Wisconsin, as we have seen, has expressly decided otherwise. And the language of the act of 1879 is not that the chairman of the board shall have the power of the mayor, but that the board and the chairman shall have concurrent power with the mayor and common council,—evidently referring to the power of the body, not to the separate power of the officers. Besides, if it were conceded that the chairman of the board had the same power as the mayor, Baxter, who was served with process as chairman of the board, was not permanent chairman, but was only temporary chairman of the particular meeting, and ceased to have any official position as such after the meeting adjourned. He was in no sense chairman of the board at the time when he was served with process. This fact, however, does not seem material in the view of the supreme court of Wisconsin; for in the cases before it, the chairman of the board was served with process during its actual session, and while he was presiding. In the construction of a state statute, in a matter purely domestic, (as this is,) we always feel strongly disposed to give great weight to the decisions of the highest tribunal of the state. Burgess v. Seligman, 107 U. S. 20, 2 Sup. Ct. Rep. 10. There is a question entirely outside of the one which we have been discussing. It is whether the state law, as thus ascertained, is objectionable on the score of being repugnant to the constitution of the United States. Does it impose embarrassments in the way of the creditor in pursuit of his claim, which did not exist when his debt was created? The point is not distinctly made by the counsel of the plaintiffs in error, although it is hinted at in their brief. But no statute has been pointed out to us, showing any change in the law of the state in this regard. As the record stands we have no sufficient ground for discussing the question in the present case. With motives we have nothing to do. Certainly improper motives cannot be attributed to a state legislature in the passage of any laws for the government of the state. Individuals may be actuated by improper motives, and may take advantage of defects and imperfections of the law for the purpose of defeating justice. The mayor of Watertown may have been actuated by such a motive in resigning his office immediately after being inducted into it. But he had a legal right to resign; and if the plaintiffs are prejudiced by his action, it is damnum absque injuria. The plaintiffs are in no worse case than were the creditors of the city of Memphis after the repeal of its charter and the establishment of a taxing district in its stead. The state has plenary power over its municipal corporations, to change their organization, to modify their method of internal government, or to abolish them altogether. Contracts entered into with them by private parties cannot deprive the state of this paramount authority. See Meriwether v. Garrett, 102 U. S. 472. The cases of Broughton v. Pensacola, 93 U. S. 266, and Mobile v. Watson, 116 U. S. 289, 6 Sup. Ct. Rep. 398, cannot aid the plaintiffs in this case. Those were cases in which a new name was given to an old corporation, or a new corporation was made out of an old one,—that was the substance of it,—and the question was whether the new corporation, or the old corporation by its new name, was liable for the old debts; and we held that it was. That was a question of liability, not a question of procedure. There the way was open for looking into the actual relations of the old and new corporations, and deciding according to the justice of the case. Here we are bound by statute; and not by the state statute alone, but by the act of congress, which obliges us to follow the state statute and state practice. The federal courts are bound hand and foot, and are compelled and obliged by the federal legislature to obey the state law; and according to this law the judgment of the circuit court was correct, and is, therefore, affirmed.
129.US.677	Amendments are discretionary -with the court below and are not reviewable by this court: this rule applies to an amendment substituting a new sole plaintiff for the sole original plaintiff. When there has been an appearance and no plea, or when, on account of amendments and changes of pleading the declaration remains without an answer, it is error to call a jury and to enter a verdict unless for assessment of damages merely. It is error to proceed to trial and enter a verdict and render judgment against a defendant on an amended declaration in which the party plaintiff is changed, when he has no notice of the order giving leave to amend, or opportunity to plead to the amended declaration, or day in court to answer to the suit. An allegation that the plaintiff is a joint stock company organized under the laws of a State is not an allegation that it is a corporation, but, on the contrary, that it is not a corporation, but a partnership. An allegation that a joint stock company plaintiff is a citizen of a State different from that of the defendant, will not give this court jurisdiction on the ground of citizenship. It is again decided that this court will of its own motion take notice of questions of jurisdiction presented by the record, although not raised by the parties, and that when the jurisdiction of a Federal court is sought on the ground of diversity of citizenship, the facts conferring the jurisdiction must either be distinctly averred in the pleadings or must clearly appear in the record. When the judgment below is reversed in this court for want of jurisdiction in the Circuit Court, the plaintiff in error is entitled to his costs in this court.	In its original form, this was an action of assumpsit, brought in the court below by the United States Express Company, alleged to have been organized under and by virtue of the laws of the state of New York, and a citizen of that state, against Heman B. Chapman, a citizen of Illinois, to recover the sum of $14,000 in money, alleged to have been intrusted to him for delivery to a certain company at La Salle, Ill., and converted by him to his own use. At the same term of the court in which the declaration was filed, Chapman answered, setting up two defenses, viz.: (1) Non assumpsit; and (2) nul tiel corporation. On the 8th of August, 1879, upon statutory affidavit filed on behalf of the company, a writ of attachment was issued, under which writ the marshal of the district levied upon certain personal property and effects of the plaintiff in error. At the succeeding term of the court, upon motions made by the company for that purpose, leave was given it to file an amended declaration, and to change its action from assumpsit to trover; and the plaintiff in error was ruled to plead to the amended declaration within 10 days after service of a copy thereof upon his attorneys. In conformity with such order, at the December term, 1879, of the court, the plaintiff amended the declaration so as to make it, in lieu of the original, read as follows: 'Ashbel H. Barney, president of the United States Express Company, a joint-stock company organized under and by virtue of a law of the state of New York, and which said company is authorized by the laws of the state of New York to maintain and bring suits, in the name of its president, for or on account of any right of action accruing to said company, and a citizen of the state of New York, the plaintiff in this suit, by E. F. Bull and James W. Duncan, its attorneys, complains of Heman B. Chapman, a citizen of the state of Illinois,' etc. After the leave to amend the declaration was given, but before the amended declaration was filed, the plaintiff in error was convicted of perjury in the circuit court of La Salle county, Ill., and sentenced to imprisonment in the Joliet penitentiary for the term of seven years, under which sentence he was, on January 2, 1880, removed to said penitentiary, and there imprisoned until October, 1884. Without any proof of service of a copy of the amendment, of any order for the default of the plaintiff in error for want of plea to the amended declaration, and without any plea thereto having been filed by him, the case was called for trial, and the record shows the following proceedings to have been had: 'Said cause having been called for trial, plaintiff appeared, and defendant and his attorney failing to appear, thereupon, upon issue joined, comes a jury, [naming them,] who were sworn well and truly to try said issue, and who, after hearing the evidence, returned the following verdict: 'We, the jury, find the issue for the plaintiff, and assess his damages at fourteen thousand dollars;" and then follows judgment, on March 27, 1880, in usual form, on the verdict, for $14,000, and costs. On the 8th of October, 1885, plaintiff in error filed in the court below his bond for the prosecution of a writ of error to reverse said judgment, and the same was duly approved by the circuit judge. The mittimus under the sentence above referred to, the certificate of the warden of the penitentiary, and the affidavit of plaintiff in error were all filed in the case and made part of the record, and they show that plaintiff in error was imprisoned in the Joliet penitentiary from January 2, 1880, to October 4, 1884; and another affidavit of the plaintiff in error, also filed in the case and made part of the record, shows that on his discharge from the penitentiary, October, 1884, he was at once arrested on a capias ad satisfaciendum, issued upon the judgment above mentioned, and from that time until the issue of the writ he had been imprisoned in the county jail of Cook county, Ill., upon such capias. His case is thus brought within the provisions of section 1008, Rev. St., which provides that, in case a party entitled to a writ of error is imprisoned, he may prosecute such writ within two years after judgment, exclusive of the term of such imprisonment. The assignments of error relied upon are three in number, and are substantially as follows: (1) The court erred in permitting a new sole plaintiff to be substituted for, and in the place of, the sole original plaintiff. (2) The court erred in submitting to the jury the cause as it stood after the amendments aforesaid, as upon issue joined between said parties, in entering the verdict of the jury in said cause, in rendering judgment thereon in favor of the defendant in error, when there was no issue joined between said parties. (3) The court erred in proceeding to trial and entering a verdict and rendering judgment against plaintiff in error when he had no notice of the order giving leave to amend, or of such amendment, and had had no time or opportunity to plead to the amended declaration, nor any day in court to answer to or defend against the suit of the new plaintiff. We do not think the first assignment of error well taken. Amendments are discretionary with the court, below, and not reviewable by this court. Mandeville v. Wilson, 5 Cranch, 15; Sheehy v. Mandeville, 6 Cranch, 253; Walden v. Craig, 9 Wheat. 576; Chirac v. Reinicker, 11 Wheat. 280; Wright v. Hollingsworth, 1 Pet. 165; U. S. v. Buford, 3 Pet. 12; Matheson v. Grant, 2 How. 263; Ex parte Bradstreet, 7 Pet. 634. We think the second point for plaintiff in error is well taken. Where there has been an appearance and no plea, or where, on account of amendments and changes of pleadings, the declaration remains without an answer, the plaintiff may move for a judgment for the want of a plea, as upon nil dicit. But no such motion was made. Certainly a jury should not be called, and verdict entered, where no issue is joined, unless for assessment of damages merely. The court erred in rendering judgment thereon. In addition to the authorities cited by counsel for plaintiff in error, see Hogan v. Ross, 13 How. 173. We also think the third point well taken. The plaintiff was not entitled to judgment without conforming to the conditions imposed by the court in the very order giving leave to amend the declaration; and, under such circumstances, the court erred in rendering judgment against defendant. But, aside from all this, we are confronted with the question of jurisdiction, which, although not raised by either party in the court below or in this court, is presented by the record, and, under repeated decisions of this court, must be considered. Sullivan v. Steam-Boat Co., 6 Wheat. 450; Jackson v. Ashton, 8 Pet. 148; Grace v. Insurance Co., 109 U. S. 278, 3 Sup. Ct. Rep. 207; Insurance Co. v. Rhoads, 119 U. S. 237, 7 Sup. Ct. Rep. 193; Cameron v. Hodges, 127 U. S. 322, 8 Sup. Ct. Rep. 1154, and authorities there cited. The ground upon which the jurisdiction of the federal court is invoked is that of diverse citizenship of the parties. In Robertson v. Cease, 97 U. S. 646, 649, it was 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;' citing Railway Co. v. Ramsey, 22 Wall. 322; Briges v. Sperry, 95 U. S. 401; and Brown v. Keene, 8 Pet. 115. See, also, Menard v. Goggan, 121 U. S. 253, 7 Sup. Ct. Rep. 873; Halsted v. Buster, 119 U. S. 341, 7 Sup. Ct. Rep. 276; Everhart v. Huntsville College, 120 U. S. 223, 7 Sup. Ct. Rep. 555. On looking into the record, we find no satisfactory showing as to the citizenship of the plaintiff. The allegation of the amended petition is that the United States Express Company is a joint-stock company organized under a law of the state of New York, and is a citizen of that state. But the express company cannot be a citizen of New York, within the meaning of the statutes regulating jurisdiction, unless it be a corporation. The allegation that the company was organized under the laws of New York is not an allegation that it is a corporation. In fact, the allegation is that the company is not a corporation, but a joint-stock company, —that is, a mere partnership. And, although it may be authorized by the laws of the state of New York to bring suit in the name of its president, that fact cannot give the company power, by that name, to sue in a federal court. The company may have been organized under the laws of the state of New York, and may be doing business in that state, and yet all the members of it may not be citizens of that state. The record does not show the citizenship of Barney, or of any of the members of the company. They are not shown to be citizens of some state other than Illinois. Grace v. Insurance Co., supra, and authorities there cited. For these reasons we are of the opinion that the record does not show a case of which the circuit court could take jurisdiction. The judgment of that court must therefore be reversed, at the costs, in this court, of the defendant in error. Hancock v. Holbrook, 112 U. S. 229, 5 Sup. Ct. Rep. 115; Halsted v. Buster, supra; Menard v. Goggan, supra. 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.
131.US.280	When a judgment of a Circuit or District Court of the United States is attacked collaterally, every intendment will be made in support of jurisdiction, unless the want of it, either as to subject matter or as to parties, appears in some proper form; and this general rule applies to judgments punishing for contempt. A petitioner for a writ of habeas co:pus to obtain his discharge from imprisonment under the judgment and sentence of a District or Circuit Court of the United States for contempt, is at liberty to allege and to prove facts, not contradicting the record, which go to show that the court was without jurisdiction.	This is an appeal from a final judgment in the Circuit Court of the United States for the Southern District of California, denying an application for a writ of habeas corpus. The appellant, in his petition for the writ, represented that he was detained and imprisoned contrary to the Constitution and laws of the United States, under and by virtue of a warrant of commitment based upon a pretended judgment of the District court of the United States for the Southern District of California, adjudging him guilty of contempt of court, and sentencing him to six months' imprisonment in jail. The petition purports to set out all the minutes, records and files of the court, in the proceedings for contempt, from which it appears that on the 12th day of February, 1889, the case of United States v. W. More Young coming on regularly for trial, a jury was ordered to be drawn and impanelled; that the names of twelve jurors were regularly drawn from the box, and they were sworn on their voir dire; that among the names so drawn was that of Robert McGarvin, who, being asked upon his examination if he had been approached or spoken to by any one about the above case, replied that he had been approached and spoken to about it by the appellant Cuddy; that, upon the testimony thus adduced, the court made an order directing a citation to be issued forthwith, requiring appellant to appear before the court, on the next day, to show cause why he should not be punished for contempt; and that such citation was accordingly at once issued. It further appears from the minutes and orders, that the matter of contempt came on for hearing the next day, the appellant appearing in person and by counsel; that an exception to the proceedings was taken by him, "a general denial entered, and the hearing was proceeded with;" that after the witnesses on behalf of the government were examined, the appellant moved to dismiss the matter of contempt, and the motion was denied; that he testified, under oath, in his own behalf; and that upon the conclusion of all the testimony the matter was submitted. The court made the following order: "Whereas, in the progress of the trial of the action of The United States of America v. W. More Young, on the 12th day of February, 1889, upon the examination of the term trial juror, Robert McGarvin, as to his qualification to sit as a trial juror in the said action, the said McGarvin testified, among other things, in effect that on the day previous he was approached by one Thomas J. Cuddy with the object of Cuddy's part to influence his, McGarvin's, actions as a juror in the said case in the event that he should be sworn to try the said action; and "Whereas, from the testimony, this court, on the said 12th day of February, 1889, entered an order directing the said Thomas J. Cuddy to show cause before this court, at the court-room thereof, at 10 o'clock, on the 13th day of February, 1889, why he should not be adjudged guilty of a contempt this court; and "Whereas, in response to said citation, said Thomas J. Cuddy did, on the said 13th day of February, 1889, appear before the said court; and "Whereas testimony was then and there introduced in respect to the matter both for and against him: The court, having duly considered the testimony, does now find the fact to be that the said Thomas J. Cuddy did, upon the 11th day of February, 1889, approach the said Robert McGarvin, at the time being a term trial juror duly impanelled in this court, with the view to improperly influence the said McGarvin's actin in the case of the United States of America against the said Young in the event the said McGarvin should be sworn as a juror in said action. "Now, it is here adjudged by the court that the said Thomas J. Cuddy did thereby commit a contempt of this court, for which contempt it is now here ordered and adjudged that the said Thomas J. Cuddy be imprisoned in the county jail of the county of Los Angeles for the period of six months from this date, and the marshal of this district will execute this judgment forthwith." The petition for the writ sets out also the warrant of commitment, which recites that the appellant "was convicted of a contempt of the said court, committed on the 11th day of February, 1889, at the city of Los Angeles, county of Los Angeles, State of California, and within the jurisdiction of said court." The appellant in his application claims "that said United States District Court had no jurisdiction or authority legally to try and sentence him in the manner and form above stated: (1) For the reason that the matters set out in said judgment do not constitute any contempt of court provided for by § 725 of the Revised Statutes of the United States; (2) for the reason that the proceedings in said court were insufficient to give the court jurisdiction to proceed to judgment in said matter; (3) for the reason that said judgment is void, because not based or founded upon any proceedings in due course of law." This is the whole case, as made by the petition for the writ of habeas corpus. Although the testimony given on the hearing of the question of contempt was taken down by a stenographer, under oath, no part of it except the evidence of McGarvin, the substance of which is recited in the above order, appears in the transcript. We are unable from the record before us to say that the circuit court erred in denying the application for the writ of habeas corpus. The statute requires the application for a writ of habeas corpus to set forth 'the facts concerning the detention of the party restrained, in whose custody he is detained, and by virtue of what claim or authority, if known.' Rev. St. § 754. The return must specify the true cause of detention, and the petitioner, or the party imprisoned, 'may deny any of the facts set forth in the return, or may allege any other facts that may be material in the case.' Such denials or allegations must be under oath, and amendments may be made, with leave of the court, 'so that thereby the material facts may be ascertained,' and the matter disposed of 'as law and justice require.' Id. §§ 757, 760, 761. The present application does show in whose custody, and by virtue of what authority, the appellant is detained; but it sets forth the facts concerning his detention so far only as they are disclosed, as above, by the minutes, files, and records of the district court. It is stated in the brief of appellant's counsel, and the statement was repeated at the bar, that the difference between the Savin Case, ante, 699, (just determined,) and the present case is that the misbehavior constituting the contempt with which Savin is charged occurred in the court building and while the court was in session; whereas, the misbehavior with which Cuddy is charged did not occur in the court building, nor, so far as the record of the district court shows, while the court was in session. It was assumed in argument that under no view of the facts could the misbehavior of Cuddy be deemed to have occurred in the presence of the court, or so near thereto as to obstruct the administration of justice, and therefore his offense, if punishable at all, was punishable only by indictment. But both the petition for habeas corpus and the record of the district court are silent as to the particular locality where the appellant approached McGarvin, with a view of improperly influencing his actions in the event of his being sworn as a juror in the case of U. S. v. Young. That which, according to the finding and judgment, the appellant did, if done in the presence of the court,—that is, in the place set apart for the use of the court, its officers, jurors, and witnesses,—was clearly a contempt, puni hable, as provided in section 725 of the Revised Statutes, by fine or imprisonment, at the discretion of the court, and without indictment. Ex parte Savin, ante, 699. The district court possesses superior jurisdiction, within the meaning of the familiar rule that the judgments of courts of that character cannot be assailed collaterally, except upon grounds that impeach their jurisdiction. In Kempe's Lessee v. Kennedy, 5 Cranch, 173, 185, Chief Justice MARSHALL, after observing that the words 'inferior court' apply to courts of special and limited authority, erected on such principles that their proceedings must show jurisdiction, said: 'The courts of the United States are all of limited jurisdiction, and their proceedings are erroneous if the jurisdiction be not shown upon them. Judgments rendered in such cases may certainly be reversed, but this court is not prepared to say that they are absolute nullities, which may be totally disregarded.' In McCormick v. Sullivant, 10 Wheat, 192, 199, where the question was whether a decree in a suit in the federal district court of Ohio, which did not show that the parties were citizens of different states, was coram non judice and void, the court said that the reason assigned for holding that decree void 'proceeds upon an incorrect view of the character and jurisdiction of the inferior courts of the United States. They are all of limited jurisdiction; but they are not, on that account, inferior courts, in the technical sense of those words, whose judgments, taken alone, are to be disregarded. If the jurisdiction be not alleged in the proceedings, their judgments and decrees are erroneous, and may, upon a writ of error or appeal, be reversed for that cause. But they are not absolute nullities.' And in Galpin v. Page, 18 Wall. 350, 365, the court said: 'It is undoubtedly true that a superior court of general jurisdiction, proceeding within the general scope of its powers, is presumed to act rightly. All intendments of law in such cases are in favor of its acts. It is presumed to have jurisdiction to give the judgments it renders, until the contrary appears. And this presumption embraces jurisdiction, not only of the cause or subject-matter of the action in which the judgment is given, but of the parties also.' The general rule that, unless the contrary appears from the record, a cause is deemed to be without the jurisdiction of a circuit or district court of the United States their jurisdiction being limited by the constitution and acts of congress—has no application where the judgments of such courts are attacked collaterally. Unless, therefore, the want of jurisdiction, as to subject-matter or parties, appears in some proper form, every intendment must be made in support of the judgment of a court of that character. The district courts of the United States, invested with power to punish without indictment, and by fine or imprisonment, at their discretion, contempts of their authority, are none the less superior courts of general jurisdiction, because the statute declares that such power to punish contempts 'shall not be construed' to extend to any cases except misbehavior in the presence of the court, misbehavior so near thereto as to obstruct the administration of justice, and disobedience or resistance to its lawful writ, process, order, rule, decree, or command. Rev. St. § 725. The only effect of this limitation is to narrow the field for the exercise of their general power, as courts of superior jurisdiction, to punish contempts of their authority. The record in the present case shows that the appellant was before the court; that testimony was heard in respect to the matter of contempt; and that the appellant testified in his own behalf. The judgment being attacked collaterally, and the record disclosing a case of contempt, and not showing one beyond the jurisdiction of the court, it must be presumed, in this proceeding, that the evidence made a case within its jurisdiction to punish in the mode pursue here. We do not mean to say that this presumption as to jurisdictional facts, about which the record is silent, may not be overcome by evidence. On the contrary, if the appellant had alleged such facts as indicated that the misbehavior with which he was charged was not such as, under section 725 of the Revised Statutes, made him liable to fine or imprisonment, at the discretion of the court, he would have been entitled to the writ, and, upon proving such facts, to have been discharged. Such evidence would not have contradicted the record. But he made no such allegation in his application, and, so far as the record shows, no such proof. The general averment in the petition, that he was detained in violation of the constitution and laws of the United States, and that the district court had no jurisdiction or authority to try and sentence him, in the manner and form above stated, is an averment of a conclusion of law, and not of facts, that would, if found to exist, displace the presumption the law makes in support of the judgment. As it was neither alleged nor proved that the contempt which the appellant was adjudged, upon notice and hearing, to have committed, was not committed in the presence of the court, and as his misbehavior, if it occurred in its presence, made him liable to fine or imprisonment, at the discretion of the court, it must be held that the want of jurisdiction is not affirmatively shown; consequently, that it does not appear that error was committed in refusing the writ. Whether the attempt to influence the conduct of the term trial juror McGarvin was or was not, within the meaning of the statute, misbehavior so near to the court 'as to obstruct the administration of justice,' however distant from the court building may have been the place where the appellant met him, is a question upon which it is not necessary to express an opinion. For the reasons stated, the judgment below is affirmed.
129.US.101	In a contract by winch the owner of a quarry on an island on the coast agrees to furmish and deliver at a public building in the interior the granite required for its construction, at specified prices by the cubic foot, and to furnish all the labor, tools and materials necessary to cut, dress and box the granite at the quarry, the United States, under a stipulation to pay " the full cost of the said labor, tools and materials, and inarance on the same," are not bound to pay anything for insurance, unless effected by the other party; nor are they, under a stipulation to "assume the risk of damage to cutting on said stone while being transported to the site of said building," bound to pay any part of the expense of raising granite sunk by a peril of the sea with its cutting uninjured.	This was a suit to recover money under contracts made in 1873 and 1877 between the supervising architect of the treasury, in behalf of the United States, and the petitioners. The court of claims dismissed the petition. Tillson v. U. S., 20 Ct. Cl. 213. The petitioners appealed, and at the argument in this court have insisted upon two claims only. By the contract of 1873 the petitioners agreed to cut and furnish from their quarry, at Hurricane island, in the state of Maine, and to deliver at St. Louis, in the state of Missouri, as much granite as might be required for the construction of a custom-house at St. Louis; the United States agreed to pay them specified prices by the cubic foot for the granite upon its delivery and acceptance at the site of the custom-house; the petitioners agreed 'to furnish all the labor, tools, and materials necessary to cut, dress, and box at the quarry all the granite aforesaid;' and the United States agreed to pay them, 'in lawful money of the United States, the full cost of the said labor, tools, and materials, and insurance on the same, increased by fifteen per centum thereof.' The court of claims found as facts that in performance of this contract the petitioners delivered at St. Louis a large quantity of dressed granite, which was transported by sea from Hurricane island to Baltimore, and thence by railway to St. Louis. It also found the reasonable price and value of marine insurance on the granite from Hurricane island to Baltimore, as compared with the value of the granite, and with the cost of cutting it; that no part of such insurance, or of 15 per cent thereon, had been paid to the petitioners; and that no insurance on the granite was actually effected or paid for by them. The first claim is based upon the clause in this contract by which the United States agreed to pay to the petitioners 'the full cost of the said labor, tools, and materials, and insurance on the same.' The petitioners contend that the insurance thus agreed to be paid for is insurance on the cost of the labor, tools, and materials used; that is to say, on that part of the value of the cut granite which was represented by the cost of the labor, tools, and materials used in cutting and boxing it. We have not found it necessary to consider whether the words 'insurance on the same' mean insurance on the granite, or insurance on the cost of the labor, tools, and materials used in cutting and boxing it, or only insurance on the materials so used; because, it being found as a fact that the petitioners never did effect or pay for any insurance whatever, we are clearly of opinion that they are not entitled to recover anything for insurance. The United States have not agreed to obtain insurance, or to become insurers themselves, but only to pay to the petitioners the 'cost of insurance,' which is as much as to say, 'reasonable premiums of insurance paid by the petitioners.' By the terms of the contract the United States are no more bound to pay for insurance which has not been effected, than for tools or materials which have not been used, or for labor which has not been performed. The second claim arises under the contract of 1877, in which the contract of 1873 was modified; the clause as to insurance omitted; the petitioners agreed to furnish, cut, dress, and box, and deliver at St. Louis, the granite required for the exterior walls of the building; and the United States 'assume all risk of damage to cutting on said stone while being transported to the site of said building, provided such damage does not result from the carelessness or negligence of' the petitioners. A vessel laden with granite cut and dressed under this contract was sunk at sea by collision, and her cargo was raised by wreckers employed by the master, and was taken to Baltimore in another vessel. The petitioners seek to recover from the United States such a proportion of the expense of raising the cargo as the value of the cutting bore to the whole value of the granite. But the only risk assumed by the United States under this contract was of 'damage to cutting on said stone while being transported,' which evidently looks only to injuries to the smooth surface or the sharp edges of the cut granite in the course of transportation, and not to a loss, by a peril of the sea, of the granite with its cutting uninjured. Such a loss, as well as any expenses incurred by the petitioners in recovering the granite, fell upon them by virtue of their agreement to deliver the granite at St. Louis. Judgment affirmed.
130.US.565	County of Warren v. Marcy, 97 U. S. 96, affirmed to the point that all persons dealing with property are bound to take notice of a suit pending with regard to the title thereto, and will, on their peril, purchase the same from any of the parties to the suit. The conveyance by the trustees of the Internal Improvement Fund of Florida, on the 10th February, 1871, to the Southern Inland Navigation and Improvement Company was subject to such decree as the court might render in a suit commenced in the Circuit Court of the United States for the Northern District of Florida against said trustees and others on the 3d of November 1870; and as the Navigation and Improvement Company was a party to that suit, and as the decree of December 4, 1873, in that suit, rescinded the agreements which the company had with the trustees in respect of lands constituting a part of the trust fund and restored to that fund the lands conveyed or attempted to be conveyed to the company by the trustees, the said deed of February 10, 1871, and the mortgage by that company to the Union Trust Company of March 20, 1871, based upon it, are invalid as against the present trustees of the Internal Improvement Fund.	This suit arises out of certain transactions connected with the execution of the act of the general assembly of Florida approved January 6, 1855, providing for and encouraging a liberal system of internal improvements in that state. Laws Fla. 1855, c. 610. By that act, so much of the 500,000 acres of land granted to Florida by the act of congress of March 3, 1845, as remained unsold; the proceeds of the sale of such as were on hand and unappropriated; all proceeds thereafter accruing from similar sales; and all the swamp lands or lands subject to overflow, granted to Florida by the act of congress approved September 28, 1850, with all the proceeds accrued and to accrue from their sale, were set apart and declared a distinct and separate fund, to be called the 'Internal Improvement Fund of the State of Florida.' The general object and scope of the act are stated in State v. Anderson, 91 U. S. 667, 670, 676, where it was said that these lands and their proceeds 'were vested in the governor, the comptroller, treasurer, attorney general, and register of state lands, and their successors in office, in trust, to dispose of the same, and invest their proceeds, with power to pledge the fund for the payment of the interest on the bonds (to the extent of $10,000 per mile) which might be issued by any railroad companies constructing roads on certain lines indicated by the act. The companies, after completing their roads, were to pay, besides interest on their bonds, 1 per cent. per annum on the amount thereof, to form a sinking fund for the ultimate payment of the principal. The act declared that the bonds should constitute a first lien or mortgage on the roads, their equipment and franchises; and, upon a failure on the part of any railroad company accepting the act to provide the interest and the payments to the sinking fund as required thereby, it was made the duty of the trustees to take possession of the railroad and all its property, and advertise the same for sale at public auction.' In the same case it was said that the trustees are merely agents of the state, invested with the legal title of the lands for their more convenient administration, and that the state remains in every respect the beneficial proprietor, subject to the guaranties which have been made to the holders of railroad bonds secured thereby. See, also, Railroad Cos. v. Schutte, 103 U. S. 118; Littlefield v. Trustees, 117 U. S. 419, 6 Sup. Ct. Rep. 793; Vose v. Reed, 1 Woods, 647; Vose v. Trustees, 2 Woods, 647. On the 3d of November, 1870, Francis Vose brought a suit in equity in the circuit court of the United States for the Northern district of Florida, against said trustees and others. Among the defendants were the Florida Canal & Inland Transportation Company, the Southern Inland Navigation Company, (described in some parts of the bill and in some of the interrogatories annexed as the Southern Inland Navigation & Improvement Company,) the New York & Florida Lumber, Land & Improvement Company, and M. S. Mickles, agent of the last-named company. The object of that suit was to obtain an injunction and decree protecting the internal improvement fund against waste and misappropriation by the trustees, to the injury of Vose and others, who held unpaid bonds issued by the Florida Railroad Company in comformity with the act of 1855. The bill charged that the trustees had violated the law of their trust by misappropriating money received by them, leaving unpaid past-due coupons, by neglecting to collect the amount due the sinking fund created by the act of 1855, and by illegally conveying millions of acres of land to corporations that had no right to receive them, and that unless restrained they would continue to waste and misapply, to the irreparable injury of the plaintiff, Vose, and others, the fund intrusted to them for the use and purposes indicated in the act. Among other allegations in the bill was one to the effect that 'on the 28th day of July, 1868, the said trustees, by resolution of that date, attempted to secure to the said Southern Inland Navigation & Improvement Company forty thousand acres, or thereabouts, of the said trust lands; and that about the 1st of March, 1870, they entered into an agreement with the said New York & Florida Lumber, Land & Inprovement Company, by which they undertook to convey one million one hundred thousand acres of the same for the nominal price of 10 cents an acre; and that this vast domain was and is to be selected from the most valuable of the said trust lands.' On the 6th of December, 1870, the circuit court issued an injunction to the trustees and their successors, commanding them, among other things, to desist 'from selling or donating or disposing of the land belonging to said trust otherwise than in strict accordance with the provisions of said act of 1855,' and 'from selling said lands for scrip or state warrants of any kind, or for aught other than current money of the United States.' This injunction was duly served upon the trustees within a few days after it was issued. On the 6th of February, 1871, an order was made reciting the service of subpoena in chancery upon the 'defendants' in conformity with the rules and practice of the court, and the bill was taken for confessed (except as to the defendant Walker) for want of an answer, plea, or demurrer. The trustees of the internal improvement fund subsequently appeared, and were permitted to file their answer, controverting the principal allegations of the bill. On the 10th of February, 1871, four days after the bill had been taken for confessed, a majority of the trustees, 'for and in the consideration of the sum of one dollar to them in hand paid,' conveyed to the Southern Inland Navigation & Improvement Company 1,360,600 acres of land; and shortly thereafter, March 20, 1871, the latter company mortgaged the above and other lands obtained from the trustees of the internal improvement fund, to secure the payment of bonds for a very large amount, which the mortgagor company proposed to issue. By a decree rendered December 4, 1873, in the suit brought by Vose, it was, among other things, adjudged that 'the contracts or agreements, entered into by the trustees of the internal improvement fund with the corporation known as the 'Southern Inland Navigation & Improvement Company,' be rescinded, and the same are hereby declared to be null and void, and the lands undertaken to be conveyed or contracted to be conveyed shall be restored to the said internal improvement fund, and be subjected to sale by the agents appointed by decree of this court, rendered during the term in accordance cordance with the provisions of said decree.' Subsequently, in May, 1875, the Southern Inland Navigation & Improvement Company filed its petition in the Vose suit, praying that the decree of December 4, 1873, be vacated, and it be permitted to file such pleadings as were necessary for the defense of its interests. The grounds upon which this relief was asked were that the company had not been made a party to the suit, nor served with a subpoena. These grounds were controverted in an answer filed by Vose to the petition. The questions thus raised were heard by Mr. Justice BRADLEY, March 26, 1877, who found that the Southern Inland Navigation & Improvement Company was duly made a party to the bill filed by Vose, was served with process of subpoena thereon, and failed and neglected to appear and answer the bill. Its prayer to vacate the order or decree of December 4, 1873, and to permit it to file necessary pleadings in that suit was denied. The present suit was instituted April 12, 1883, by the Union Trust Company of New York against the Southern Inland Navigation & Improvement Company and the trustees of the internal improvement fund. Its object is to obtain a decree adjudging that the said trustees have no right, title, or interest in the lands embraced in the mortgage of February 10, 1871; that the same are subject to said mortgage; and that the property so mortgaged be sold to pay the amount found to be due upon any outstanding bonds secured by that mortgage. The principal defense rests upon the above proceedings, orders, and decrees in the Vose suit. The bill was dismissed, with costs, and from the decree of dismissal the present appeal was prosecuted. The argument at the bar covered several questions of an interesting character, which we do not deem it necessary to determine, as the decree below must be affirmed upon the ground that the deed of February 10, 1871, by the trustees of the internal improvement fund to the Southern Inland Navigation & Improvement Company—under which deed the present plaintiff, as mortgagee of the grantee, claims title—was made in violation of the injunction previously issued and served upon said trustees in the suit instituted by Vose. That suit, as we have seen, had for its object the protection of the rights of Vose and other holders of railroad bonds in the lands and money under the control of the trustees of the internal improvement fund. The injunction bound the trustees, and they, and all other parties to the suit, who were before the court, were concluded by the decree subsequently rendered in respect to the disposition of the lands that were the subject-matter of the litigation. In County of Warren v. Marcy, 97 U. S. 96, 105, it was said to be a general rule that 'all persons dealing with property are bound to take notice of a suit pending with regard to the title thereto, and will, on their peril, purchase the same from any of the parties to the suit.' While this rule was said not to apply to negotiable securities, purchased before maturity, nor to articles of ordinary commerce sold in the usual way, it was held to be applicable in cases relating to land. And in support of this view was cited the case of Murray v Ballou, 1 Johns. Ch. 566, in which Chancellor KENT laid it down as an established rule that 'a lis pendens, duly prosecuted, and not collusive, is notice to a purchaser so as to affect and bind his interest by the decree; and the lis pendens begins from the service of the subpoena, after the bill is filed.' Here the Southern Inland Navigation & Improvement Company accepted a conveyance of the lands in question from the trustees of the internal improvement fund, after service of the subpoena, and a copy of the injunction, upon the trustees, its grantors. That company, therefore, took its titles pendente lite, and its mortgagee, the Union Trust Company, was bound by the final decree rendered in the case to the same extent that it is bound. It is, however, suggested that the Southern Inland Navigation & Improvement Company was not a party to the Vose suit, and consequently was not bound by that part of the decree of December 4, 1873, adjudging that the contracts or agreements entered into by the trustees with that company 'be rescinded, and the same are declared null and void, and the lands undertaken to be conveyed, or contracted to be conveyed, shall be restored to the said internal improvement fund, and be subjected to sale by the agents appointed by the court.' To this suggestion there are two answers. First. The question whether the Southern Inland Navigation & Improvement Company was a party defendant to the Vose suit, and therefore affected by the decree pro confesso, passed February 6, 1871, was determined adversely to it by the order of March 26, 1877, denying its application to have the order of December 4, 1873, set aside. From the order of March 26, 1877, no appeal was prosecuted; and in this collateral proceeding that order is to be taken as conclusively establishing the fact that the Southern Inland Navigation Company was a party to the Vose suit, was served with process of subpoena therein, and neglected to appear and answer the bill. Second. The relief granted in the Vose suit in respect to the agreement or contracts which the Southern Inland Navigation & Improvement Company claimed to have with the trustees of the internal improvement fund was within the general scope of that suit, and was fairly covered by the prayer for such relief as might be deemed just and equitable. Besides, if that company was a party to the Vose suit, and we have seen that it was, the decree, so far as it rescinds the agreement or contracts it had with the trustees, and restores to the internal improvement fund the lands covered by these contracts, was not void. If erroneous, it could only be avoided by an appeal. It cannot be questioned in this collateral proceeding. It results from what has been said that the conveyance by the trustees to the Southern Inland Navigation Company was subject to such decree as the court might render in the Vose suit; and as the decree of December 4, 1873, rescinded the agreements which the latter had with the former in respect to lands constituting a part of the trust fund, and restored to that fund the lands conveyed, or attempted to be conveyed, to that company by the trustees, the conveyance of February 10, 1871, and the mortgage of March 20, 1871, based upon it, are invalid, as against the present trustees of the internal improvement fund of Florida. Decree affirmed.
129.US.493	Mandamus lies to compel a party to do that which it is his duty to do; but it confers no new authority, and the party to be compelled must have the power to perform the act. If a petitioner for a writ of mandamus to compel the levy of a tax to pay a debt evidenced by a judgment recovered on coupons of municipal bonds is obliged to go behind the judgment in order to obtain his remedy, and it appears that the bonds were void and that the municipality was without power to tax to pay them, the principle of res judicata does not apply upon the question of issuing the writ. When application is made to collect judgments by process not contained in themselves, and requiring, in order to be sustained, reference to the alleged cause of action on which they are founded, the aid of the court should not be granted when upon the face of the record it appears, not that mere error supervened in the rendition of such judgments, but that they rest upon no cause of action whatever.	Mandamus lies to compel a party to do that which it is his duty to do without it. It confers no new authority, and the party to be coerced must have the power to perform the act. On the 19th of March, 1886, when this petition was filed, had the board of commissioners the power to levy and collect taxes to pay the judgments in question? The circuit court, in deciding that it had, proceeded upon the ground that the source of power was the act of February 8, 1870, and we concur in the view that there was no other. The city of Brownsville possessed no inherent power to tax, and while under an act of February 24, 1870, its inhabitants were constituted a corporation and body politic by the name and style of the 'mayor and aldermen of the city of Brownsville,' with power by ordinance 'to levy and collect taxes upon all property, privileges, and polls taxable by the laws of this state, to appropriate money, and to provide for the payment of the debt and expenses of the city,' the power so vested was confined in its exercise to taxation for ordinary municipal purposes, and the payment of debts contracted in the ordinary administration of municipal affairs. Debt created by the issue of bonds in aid of railroad construction was not within the purview of the charter power, but by the act of February 8, 1870, the power to tax to pay the interest on, and create a sinking fund for the redemption of, the bonds authorized to be issued thereunder was expressly given. This express grant fell with the abrogation of the act by the taking effect, on the 5th of May, 1870, of the new state constitution; and in Norton v. Taxing Dist., ante, 322, we have held that the bonds, upon coupons detached from which the judgments sought to be because here were rendered, were void, not because of a defective exercise of the power to issue them, but because of a total absence of such power. It is, however, contended that the coupons having passed into judgments, not only is all inquiry into their validity precluded, but also any denial of the power to tax to pay them granted by the act of February 8, 1870. As already remarked, the circuit court did not hold that the peremptory writ should go to command a levy to pay judgments as debts in that form, but based its order upon the inability of the respondents by reason of the judgments to assert the abrogation of the act in question. Under the legislation between the issue of the bonds in 1870 and this application in March, 1886, authority to levy taxes to pay debts of the character represented by these judgments, when uncompromised, did not exist at the latter date, so that plaintiff was remitted, in the assertion of a right to that remedy, to the time when the bonds were issued; and as the city had then no power to tax to pay them other than that derived from the act of February 8, 1870, the relator by his pleadings opened the facts which attended the judgments for the purpose of counting upon that act as furnishing the remedy which he sought. In this he in effect asked the court to order the levy of a tax to pay the coupons, and relied on the judgments principally as creating an estoppel upon a denial of the power to do so. Thus in vited to look through the judgments to the alleged contracts on which they are founded, and finding them invalid for want of power, must we nevertheless concede to the judgments themselves such effect, by way of estoppel, as to entitle the plaintiff ex debito justitioe to a writ commanding the levy of taxes under a statute which was not in existence when these bonds were issued? The case of Harshman v. Knox Co., 122 U. S. 306, 7 Sup. Ct. Rep. 1171, is referred to by the learned judge holding the circuit court as in principle identical with this. In that case, under section 17 of the general railroad law of Missouri, the county court of a county was authorized to subscribe to the stock of railroad companies, though created by special charter, provided the requisite assent of qualified voters was duly obtained; and section 18 of the law provided that a special tax might be levied for the purpose of paying such bonds, without limit as to its amount. Under section 13 of the act incorporation the Missouri & Mississippi Railroad Company, taxes might be levied to pay bonds issued thereunder, but not to exceed one-twentieth of 1 per cent. upon the assessed value for each year. Harshman recovered judgment upon bonds and coupons issued by Knox county in part payment of a subscription made by said county to the capital stock of the Missouri & Mississippi Railroad Company, upon a petition setting forth that the subscription was authorized under the seventeenth section of the general railroad law. The judgment not being paid, he brought his proceeding by mandamus for the levy of a special tax to pay it, without limit as to the percentage; again alleging that the subscription, in part payment of which the bonds were issued, was authorized by vote under said seventeenth section. Upon the trial the circuit court required the relator to put in, with the record of the proceedings and judgment, the bonds; and it appeared that the latter recited that they were issued for a subscription authorized by the act incorporating the Missouri & Mississippi Railroad Company; and as the jury found that the relator had not proved that, despite the recitals in the bonds, they were issued under the general law, the court rendered judgment in favor of the respondents. But this court reversed that judgment upon the ground that, as 'it was part of the plaintiff's case to show, not merely the execution of the bonds by the county authorities, but that they were issued in pursuance of a law making them the valid obligations of the county,' and it having been averred that they were issued under section 17 of the general railroad law, (chapter 63, St. 1866,) that fact was confessed by the default, and its truth stood admitted on the record; and, as mandamus in such cases was a remedy in the nature of an execution, it could in that case be limited in its mandate 'only by that which the judgment itself declares.' And the court say, Mr. Justice MATTHEWS delivering the opinion: 'It may well be that, in a case where the record of the judgment is silent on the point, the original contract may be shown, notwithstanding the merger, to determine the extent of the remedy provided by the law for its enforcement; but that is not admissible where, as in this case, the matter has been adjudged in the original action. * * * By the terms of the judgment in favor of the relator, it was determined that the bonds sued on were issued under the authority of a statute which prescribed no limit to the rate of taxation for their payment. In such cases, the law which authorizes the issue of the bonds gives also the means of payment by taxation. The findings in the judgment on that point are conclusive.' But there the power to issue the bonds was not questioned. The controversy was as to the rate of taxation, depending upon which act they were issued under. If the original contract could have been resorted to, the decision might have been otherwise as to the rate; but it was held that that could not be done, because, from the averments which formed part of the complete judgment record, it appeared that the bonds were issued under one act rather than the other, while each of the acts fully authorized the issue, and gave the power to tax to pay. But in the case at bar it appeared from the judgment records, or, if not, from relator's petition, that the bonds were issued under an abrogated statute, and were consequently void, and that the respondents possessed no power to tax to pay them, because that power was given only by the statute, which had so ceased to exist. The power invoked is not the power to tax to pay judgments, but the power to tax to pay bonds, considered as distinct and independent; and therefore, when the relator is obliged to go behind his judgments as money judgments merely, to obtain the remedy pertaining to the bonds, the court cannot decline to take cognizance of the fact that the bonds are utterly void, and that no such remedy exists. Res judicata may render straight that which is crooked, and black which is white,—facit ex curvo rectum, ex albo nigrum, (Jeter v. Hewitt, 22 How. 352, 354;) but where application is made to collect judgments by process not contained in themselves, and requiring, to be sustained, reference to the alleged cause of action upon which they are founded, the aid of the court should not be granted when upon the face of the record it appears, not that mere error supervened in the rendition of such judgments, but that they rest upon no cause of action whatever. The judgment is reversed, and the cause remanded, with a direction to dismiss the petition.
130.US.320	The general rule respecting statutes of limitation is that the language of the act must prevail, and that no reason based on apparent inconvenience or hardship will justify a departure from it. Cases considered in which courts of equity and some courts of law have held that the running of the statute was suspended on the ground of fraud. Cases considered in which courts of law have held the operation of the statute suspended for want of parties, or because the law prohibits the bringing of an action. Inability to serve process upon a defendant, caused by his designed elusion of it, is no excuse for not commencing an action within the prescribed period.	This is an action for a money demand, brought by the plaintiffs in error against the defendant, the city of Watertown. A summons was sued out against the city on the 19th of June, 1883, and served by the marshal on the 26th of the same month by delivering a copy to the city clerk, the city attorney, and to the last-elected chairman of the board of street commissioners. Appearance to the action was entered by the attorneys of the city, and a copy of the complaint was demanded. The complaint was duly filed, and set forth the issue by the city of three bonds for $1,000 each, bearing date, respectively, the 1st day of June, 1856, and payable on the 1st day of January, 1877, with interest thereon at the rate of 8 per cent. per annum, payable semi-annually, and with coupons annexed, to represent the successive installments of interest. The plaintiff prayed judgment for the amount of said bonds and of the last 10 coupons on each. The defendant, in its answer, set up as a defense that the several causes of action did not, nor did either of them, accrue within six years next before the commencement of the action; that being the time within which actions upon bonds and coupons must be commenced in the state of Wisconsin. To this answer the plaintiffs replied (by way of an amendment to their complaint) as follows: 'Said plaintiffs allege, on information and belief, that the said defendant, the city of Watertown, and the officers, agents, and citizens and residents of said city, did, subsequent to the 1st day of March, A. D. 1873, conspire together and with each other, and ever since have conspired together and with each other, for the purpose, and with the preconceived intent and design, to defraud these plaintiffs and all other owners and holders of the bonds and coupons to such bonds issued by said city, and to prevent these plaintiffs and other holders and owners of said bonds and coupons from obtaining the service of process on said city. Said plaintiffs further allege, on information and belief, that each year since the 1st day of March, 1873, a mayor of said city was elected, as required by law, but said mayor each year, with the intent and design as aforesaid, qualified as hereinafter mentioned, and immediately thereafter placed his resignation in the hands of the city clerk of said city, to be filed by him in case of emergency, and to take effect accordingly. Said plaintiffs further allege, on information and belief, that each year since the 1st day of March, 1873, after the mayor and members of the common council had been elected, they and each of them failed to qualify until they had assembled together in a secret place with locked doors, unknown to the people at large and to these plaintiffs, and with persons on watch to inform them of the approach of any person or persons, and then and there, if unmolested, the mayor and the members of the common council, qualified as required by law, transacted for said defendant city certain necessary business, and thereafter immediately filed with the city clerk of said city their respective resignations, to take effect immediately, and which resignations went immediately into effect. Said plaintiffs further allege that since the 1st day of March, 1873, they have employed attorneys and agents for the purpose of ascertaining who was the mayor or acting mayor, or chairman of the common council, or chairman of the board of street commissioners, and for the purpose of having process served on said city; but owing to said conspiracy, as these plaintiffs are informed and believe, since the 1st day of March, 1873, there has been no mayor of said city except each year for a few hours at such secret and concealed meetings, and the common council of said city, with the said fraudulent intent and design, has failed each year to elect a chairman of said common council, and since said last-mentioned date there has been no person who was acting mayor, and no chairman of the board of street commissioners. Said plaintiffs further allege that, notwithstanding they have used due diligence, and have hired attorneys and agents for the purpose of having process served on said city, they have been unable to this date to serve or have served the summons in this action on the mayor of said city, or on that person who by law should exercise the functions of mayor of said city.' The defendants thereupon filed an amended answer, again setting up the statute of limitations, and averring that the plaintiffs did not commence, or attempt to commence, said action, or use any diligence whatever to commence the same, before the 19th of June, 1883. To this answer the plaintiffs demurred, and the court below overruled the demurrer, and allowed the plaintiffs 20 days to file such further pleadings as they might deem proper. 22 Fed. Rep. 418. As the plaintiffs failed to plead further, judgment was entered for the defendant. To this judgment the present writ of error is brought. It will be observed that the plaintiffs do not pretend that they commenced the action within the legal period of six years after the several causes of action accrued; and their excuse for not doing so is that it would have been of no use, on account of the alleged conspiracy of the officials and residents of Watertown to prevent, a service of process, by the resignation of the mayor, and by the secret meeting of the common council before qualifying and organizing, and by their immediately resigning their offices after the transaction of some necessary business. The question is whether such proceedings on the part of the city officials furnish an excuse for not commencing the action within the time limited by law? The statute itself specifies several exceptions to its operation,—as (1) when the defendant is out of the state; (2) when he is an alien subject, or a citizen of a country at war with the United States; (3) when the person entitled to bring the action is insane, or under age, or imprisoned on a criminal charge; (4) when the commencement of an action has been stayed by injunction or statutory prohibition; (5) where the action is for relief on the ground of fraud, the statute does not begin to run until the discovery by the party aggrieved of the facts constituting the fraud. The question, therefore, is whether the courts can create another exception, not made by the statute, where the party designedly eludes the service of process? Have the courts the power thus to add to the exceptions created by the statute? That is the precise question in this case. It is said by Mr. Justice STRONG, in Braun v. Sauerwein, 10 Wall. 218, 223: 'It seems, therefore, to be established that the running of a statute of limitation may be suspended by causes not mentioned in the statute itself.' The observation is undoubtedly correct; but the cases in which it applies are very limited in character, and are to be admitted with great caution; otherwise the court would make the law instead of administering it. The general rule is that the language of the act must prevail, and no reasons based on apparent inconvenience or hardship can justify a departure from it. The courts of equity, however, from an early day, held that where one person has been injured by the fraud of another, and the facts constituting such fraud do not come to the knowledge of the person injured until some time afterwards, the statute will not commence to run until the discovery of those facts, or until by reasonable diligence they might have been discovered. Booth v. Warrington, 4 Brown, Parl. Cas. (Ed. Toml.) 163; South Sea Co. v. Wymondsell, 3 P.Wms. 143; Hoveden v. Lord Annesley, 2 Schoales & L. 607, 631, etc.; Blennerhassett v. Day, 2 Ball & B. 104, 129; Mitf. Eq. Pl. (Ed. Jeremy,) 269; Blansh. Lim. 81; Wood, Lim. § 58, p. 114; Id. § 274, p. 586; Ang. Lim. (2d Ed.) c. 18, p. 188. A dictum of Lord MANSFIELD in Bree v. Holbech, 2 Doug. 654, 656, that 'there may be cases which fraud will take out of the statute of limitations,' raised the question whether undiscovered fraud might not be set up by way of replication to a plea of the statute in actions at law. Wilk. Lim. 115. But this suggestion never obtained the force of law in the English courts. Brown v. Howard, 2 Brod. & B. 73; Coke Co. v. Gas-Light Co., 10 Exch. 39, 42, 45; Hunter v. Gibbons, 1 Hurl. & N. 459, 464. Vice-Chancellor WIGRAM granted relief in equity in the case of Blair v. Bromley, 5 Hare, 542, on the express ground that the acts of fraud were not Howard, 2 Brod, & B. 73; Coke Co. v. Gas-Light the suit, and that the remedy at law was gone; and his decree was affirmed by Lord COTTENHAM, (2 Phil. Ch. 354.) In this country, however, in many of the states, especially in those states which never had a separate system of equity, the statute has been held not to run, in cases of fraud, until the discovery of the facts constituting the fraud; while in other states, in the absence of a statutory provision on the subject, the English doctrine has been adhered to. See Ang. Lim. c. 18, and Wood, Lim. § 58. In most of the states, however, statutes have finally been passed, suspending the statute in cases of fraud until the facts have been discovered, or might have been discovered by reasonable diligence. See the various statutes referred to in Wood, Lim. c. 22. From this brief review it appears that concealment of fraud has by many courts been considered good ground for suspending the statute of limitations, even in actions at law. But this is a very different thing from attempting to avoid service of process, and cannot be cited as aiding in any way the adoption of such a rule in the latter case. Concealment of fraud prevents a party from knowing that he has been injured and has a cause of action. He cannot take any steps to obtain redress. But when a party knows that he has a cause of action, it is his own fault if he does not avail himself of those means which the law provides for prosecuting his claim, or instituting such proceedings as the law regards sufficient to preserve it. There is one class of cases which is excluded from the operation of the statute by act of law itself, by which the case in which Mr. Justice STRONG made the remark referred to is one. This class embraces those cases in which no action can be brought at all, either for want of parties capable of suing, or because the law prohibits the bringing of an action. In such cases the general law operates as a qualification, or tacit condition, of the particular statute. Thus, if a man dies after commencing an action, and it abates by his death, and the limitation of time for bringing another action expires before the appointment of an executor or administrator, the courts have held that as there is no person to bring suit, the statute is suspended for a reasonable period, in order to give an opportunity to those interested to have the proper representative appointed. Blansh. Lim. 104-112; Wood, Lim. p. 11, note 4. So where a citizen of one country has a cause of action against a person who resides in another country at war with his own, the law of nations forbids any intercourse between them, and suspends all suits and actions by the one against the other: and therefore the time during which the right to sue is thus suspended is not reckoned as any part of the time given by the statute of limitations for bringing an action. Hanger v. Abbott, 6 Wall. 532; The Protector, 9 Wall. 687; Wood, Lim. 9, 10. Besides this general exception created by act of law, it is difficult to find any other ground or cause for suspending the operation of the statute not specified in the act itself. The answer made by the plaintiffs to the plea of the statute amounts to nothing more than an allegation that the defendant, the city of Watertown, by the acts of its officers, seeks to evade the service of process. Their language is that the officers and people have conspired together for the purpose of defrauding the plaintiffs, and to prevent them from obtaining service of process. Is it fraud in a debtor to endeavor to evade the service of process? Is it any more fraudulent than it is not to pay the debt? Fraud is not the proper term to apply to such conduct. It may be morally wrong. It may be dishonest; but it is not fraudulent in the legal sense of the term. Inability to serve process on a defendant has never been deemed an excuse for not commencing an action within the prescribed period. The statute of James made no exception to its own operation in case where the defendant departed out of the realm, and could not be served with process. Hence the courts held that absence from the realm did not prevent the statute from running. Wilk. Lim. 40; Hall v. Wyborn, 1 Show. 98. This difficulty was remedied by the act of 4 & 5 Anne, c. 16, § 19, which declares that if any person against whom there shall be any cause of action be at the time such action accrued beyond the seas, the action may be brought against him after his return, within the time limited for bringing such actions. Most of the states have similar acts. The statute of Wisconsin, as we have seen, has a similar provision; perhaps wider in its scope. That statute, therefore, has expressly provided for the case of inability to serve process occasioned by the defendant's absence from the state. It has provided for no other case of inability to make service. If this is an omission, the courts cannot supply it; that is for the legislature to do. Mere effort on the part of the defendant to evade service surely cannot be a valid answer to the statutory bar. The plaintiff must sue out his process and take those steps which the law provides for commencing an action and keeping it alive. The judgment of the circuit court must be affirmed.
129.US.1	Claims 1 and 2 of letters patent No. 74,342, granted to Alvaro B. Graham, February 11, 1868, for an improvement in harvesters, namely "1. The combination, as set forth, m a harvester, of the finger-beam with the gearing-carriage, by means of the vibratable link, the draft-rod, and the two swivel-joints, Al and M'1 so that the finger-beam may both rise and fall at either end, and rock forward and backward. 2. The combination, as set forth, in a harvester, of the finger-beam, gearing-carriage, vibratable link, draft-rod, swivel-joints, and arm, by which the rocking of the finger-beam is controlled," are not infringed by a machine constructed under letters patent No. 193,770, granted July 31, 1877 to Leander J. McCormick, William R. Baker, and Lambert Erpelding, assignors to C. H. & L. J. McCormick. It is apparent from the proceedings in the Patent Office on the application for Graham's patent, and from the terms of his specification and of claims 1 and 2 as granted, that the intention was to limit the modification which Graham made, to the particular location of the swivel-joint, Mf on which the crosswise rocking movement takes place, and to the rigid arm by which the positive rocking of the finger-beam in both directionis affected and controlled. In the defendants' machine there is no such rocking of the finger-beam as in Graham's patent, but only a swinging movement, as in prior patents, on a pivot in the rear of the finger-beam, and there is no arm which can depress the finger-beam, but only a loose connection to it, the same as existed before; and there is no swivel-joint, All located and operating as in the Graham patent; and it does not infringe claun I or claim 2.	There are 10 claims in the patent, claims 1 and 2 being as follows: '(1) The combination, as set forth, in a harvester, of the fingerbeam with the gearing-carriage, by means of the vibratable link, the draught-rod, and the two swivel-joints, M and M', so that the finger-beam may both rise and fall at either end, and rock forward and backward. (2) The combination, as set forth, in a harvester, of the finger-beam, gearing-carriage, vibratable link, draught-rod, swivel-joints, and arm, by which the rocking of the finger-beam is controlled.' It will conduce to a solution of the questions involved in the case to give a history of the progress of the application for the patent through the patent-office, as gathered from certified copies of those proceedings found in the record. On the 4th of December, 1865, the patentee. Alvaro B. Graham, as assignor to himself, William B. Werden, and Cyrus A. Werden, filed in the patent-office an application for a patent, which was sworn to by him on the 25th of February, 1864. The specification of this application stated that one object of the invention was the free passage of the finger-bar over the ground, and the perfect moving of it to adjust itself to the inequalities of surface over which it might pass, and that another object of the invention was the cutting in a proper manner of lodged grass or grain. It also stated that the machine had a finger-bar, I, the inner end of which was attached by a joint, h, to a bar, J, which was at the rear of the main frame, A, and was connected thereto, at its left-hand side, by a swivel or universal joint, K,—such joint being composed of a rod, i, which was allowed to turn in a bearing, j, attached to the main frame, the end of the bar, J, being cylindrical, and allowed to turn in the rod, i; that the joint, K, admitted of the bar, J, and finger-bar, I, being raised vertically, and also admitted of those bars being turned in a more or less inclined position, in their transverse section, to admit of the fingers and sickle being turned more or less down towards the ground, as might be required; that this adjustment of the fingers and sickle was effected through the medium of a lever, M, which was connected by a rod, l, with an upright, m, on the bar, J; that this lever, M, might be retained in any desired position, within the scope of its movement, by means of a perforated bar, n, into the holes of which a pin on the lever caught; that the finger-bar, I, might be raised separately from the joint, h, as a center, through the medium of a lever, N, which, like the lever, M, was attached to the main frame, A, and had a chain or cord attached to its lower end, said chain or cord passing around a pulley, q, on the bar, J, and being attached to the upper end of an upright, r, attached to the finger-bar at the joint, h; that both bars, I and J, might be elevated simultaneously by a lever, O, which was also attached to the main frame, A, and bore at its lower end on another lever, P, the outer end of which was connected by a chain, s, with the bar, J; that the lever, O, might be retained at any desired point, within the scope of its movement, by means of a rack-bar, P'; that, in case an obstruction presented itself to the inner end of the finger-bar, I, the lever, O, was actuated in order to raise such end of the finger-bar, and, if an obstruction presented itself to the outer end of the finger-bar, the lever, N, was actuated; and that the applicant did not claim the connecting of the finger-bar, I, to the bar, J, by a joint, h, for that had been previously done. There were five claims in the specification, the first two of which were as follows: (1) 'The attaching of the bar, J, to the main frame, A, by means of the swivel or universal joint, K, when used in combination with the finger-bar, I, attached to it by a joint, h, and this I claim irrespective of any peculiar position of the parts, or particular application of the same to the frame of the machine, so long as the desired result is obtained.' (2) 'The arrangement of the lever, N, chain or cord, p, and upright, r, substantially as shown, for raising the outer end of the finger-bar, I, as set forth.' On the 30th of December, 1865, the patent-office rejected claims 1 and 2 on a reference to prior patents. On the 24th of March, 1866, the applicant erased claims 1, 2, and 3, and substituted for claim 1 the following: (1) 'The combination of the finger-bar, I, and bar, J, attached to the frame, A, by means of the universal joint or swivel, K, in the manner and for the purpose herein specified.' On the 4th of April, 1866, the patent-office rejected this substituted claim 1, by a reference to a prior rejected application and to a prior patent. On the 1st of October, 1866, it allowed the two remaining claims applied for, which had been numbered 4 and 5 originally. On the 18th of June, 1867, the applicant filed a withdrawal of the amendments filed March 24, 1866, the effect being to limit the invention claimed under the patent to the two claims allowed October 1, 1866, and the patent was granted July 23, 1867, as No. 67,041, with those two claims, which in no manner relate to any question involved in the present suit. Prior to such withdrawal of June 18, 1867, and on the 11th of February, 1867, Mr. Graham filed an application which resulted in the patent in suit, No. 74,342, issued February 11, 1868. Claims 1 and 2 of the specification of that application originally read as follows: (1) 'The combination, in a harvester, of the finger-beam with the gearing-carriage, by means of a vibratable link, draught-rod, and two swivel-joints, so that the finger-beam may both rise and fall at either end, and rock forward and backward, substantially as set forth.' (2) 'The combination, in a harvest of the finger-beam, gearing-carriage, link, draught-rod, swivel-joints, and arm, by which the rocking of the finger-beam is controlled, substantially as set forth.' There were 15 claims in all made in the specification. On the 29th of July, 1867, the patent-office rejected claims 1 and 2, by a reference to prior patents. On the 31st of December, 1867, the applicant amended claims 1 and 2 so as to read as they are in the patent as granted. The changes thus made in those two claims, and which, under the circumstances, were made to secure the issuing of the patent, the claims having been rejected in the shape in which they were first proposed, were these: In claim 1 'the combination, as set forth,' was substituted for 'the combination;' 'the vibratable link' for 'a vibratable link;' 'the draught-rod,' for 'draught-rod;' 'the two swivel-joints, M and M',' for 'two swivel-joints;' and the words 'substantially as set forth' were erased. In claim 2 'the combination, as set forth,' was substituted for 'the combination;' 'vibratable link,' for 'link;' and the words 'substantially as set forth' were erased. In the second claim the word 'the' was always prefixed to the enumerated elements composing the combination claimed. The principal question for determination, in the view we take of the case, is that of infringement. The circuit court, in its opinion delivered on the making of the interlocutory decree, (10 Biss. 39, and 11 Fed. Rep. 859,) considered especially two prior patents, one granted to David Zug, October 4, 1859, No. 25,697, and the other granted to F. Ball, October 18, 1859, No. 25,797. In considering those patents, on the question of infringement as well as on the question of novelty, the circuit court said: 'The two claims of the Graham patent, which are alone in controversy here, are the first and second. The first claim is for a combination of the finger-beam with the gearing-carriage by means of the vibratable link, the draught-rod, and the two swivel-joints, M and M', so that the finger-beam may both rise and fall at either end, and rock backward and forward; and the second claim is the same as the first, with this only added: that an arm is attached to the vibratable link by which the rocking of the finger-beam is controlled by the driver. The object of this invention, as set forth in these two claims, seems to be mainly to produce the rocking motion of the finger-beam as described and by the method described. In the Ball patent, while there may be said to be something equivalent to the swivel-joint, M, of the plaintiff's machine, where it is attached to the frame, and also something similar to the draught-rod and the arm, there is nothing to produce the rocking motion, which is the essential object in the first two claims of the plaintiff's machine, and consequently there is no swivel-joint, M', as in the plaintiff's machine; so that there is nothing in the Ball machine to prevent the validity of the combination of the first two claims of the plaintiff's patent. The Zug machine has, if not a swivel-joint like that of the plaintiff's at M, where connected with the frame, something which seems substantially similar. It has a vibratable link, and it has something which is equivalent to the draught-rod, the main difference being that it is attached beneath the shoe instead of above, but there is no swivel-joint, M'. There is an arm which is attached to the draught-rod and shoe by which it can be raised and lowered, but Zug claims in his patent that when the machine is in progress over the field, and when the finger-bar strikes any obstacle, there is a device in a box, in which the forward part of the draught-rod is fastened, by which the finger-bar yields to the obstacle; and that there is also a mode by which the vibratable rod is attached to the frame, called 'joint 16,' in his patent, and what has been termed an 'open clevis,' where the vibratable link is connected with the draught-rod, by which a motion is given to the finger-bar, and thus the finger-bar is relieved from the obstacle. Zug does not claim that the finger-bar in his machine has a rocking motion, but only that the mode by which the draught-rod is fastened, and the motion given to the finger-bar, prevents the obstacle which the machine may meet from doing damage to it. These seem to be the main differences between the two machines, and the question is whether there is anything in the Zug machine to prevent the combination named in the first two claims of the plaintiff's patent from being valid. The defendants' machine has the swivel-joint attached to the frame, the vibratable link in the same form as the plaintiff's, and the draught-rod attached forward in substantially the same way as the plaintiff's; but instead of having a swivel-joint at M', as stated in plaintiff's machine, forward of the shoe, the draught-rod has a swivel-joint at the rear end of the shoe; and there is an arm attached to a part of the vibratable link substantially like that of the plaintiff's; and the substantial difference, as it seems, between the plaintiff's device, as described in the first and second claims, and that of defendants, is that the draught-rod is attached to the rear part of the shoe, and not to the forward part, as in the plaintiff's patent. There are also other devices in the defendants' machine which may make it different from the plaintiff's. But as to the swivel-joint, the vibratable link, and the mode in which the motion is produced in the finger-bar, there does not seem to be much difference in substance; and in both machines, and by substantially the same means, there is produced a rocking motion. In this connection it is noticeable that the defendants, in the claim set forth in the specification of their patent, make a rocking motion of the shoe and cutter a feature of their combination. In their second claim they say that they claim the combination of the 'shoe, and the drag-bar extending over and in rear of the shoe, and its swiveled pin connecting it with the rear end of the shoe, whereby the drag-bar sustains the thrust of the shoe, while leaving it free to rock on its hinges.' Again, in their fifth claim, they say that they claim the combination 'of the shoe, the forked coupling-arm, the drag-bar extending over and in the rear of the shoe, the swivel-pin connecting the two, the rocking lever and the detent mounted on the drag-bar, and the adjustable link connection between the lever and coupling-arm, whereby the shoe readily may be rocked or adjusted.' And again, the motion which seems to be produced in the operation of plaintiff's machine is more distinctly described in the seventh claim made by the defendants in their patent, as follows: The combination 'of the shoe, the drag-bar, the forked coupling-arm.' and the other elements of mechanism before mentioned, 'whereby the shoe is first rocked, and then lifted by one continuous movement of the lever.' It must be confessed that the difference between the Zug machine and the first two claims of plaintiff's patent is not very marked. But in view of the description contained in the specifications of Zug's patent, and in those of the plaintiff's patent, we are inclined to think that the plaintiff's patent may be sustained on the ground that there is a difference in the manner in which the draught-rod is attached to the shoe, and the finger-bar to the shoe and to the vibratable link; and that there is also a difference in the manner in which the combination of the various parts are adjusted; and that there is an effect produced in the plaintiff's machine which does not exist in the Zug machine. In the plaintiff's machine there is a rocking motion, and not a mere vibratory motion, such as exists in the Zug machine in consequence of the open clevis; neither is there in the plaintiff's machine the yielding of the draught-rod, as described in the Zug patent; and it is obvious, too, from the manner in which the parts are constructed in the Zug machine, that there is only a small vibratory action of the finger-bar; so that, on the whole, we think that the combination, as described in plaintiff's patent, may be sustained. Then, from what we have said, we do not see that there can be any substantial difference between the combination, as described, in the plaintiff's machine, of the swivel-joints, draught-rod, and vibratable link, with the frame and shoe and finger-bar, and that of the defendants' machine. The differences which have been stated between the two machines in this respect do not constitute any difference in principle. The one is substantially the same thing as the other. The additions which have been made to the defendants' machine, such as the device by which the pressure of the cutting apparatus upon the ground is regulated, and other devices which have been made, do not affect the combination as claimed in the plaintiff's machine. The attachment of the draught-rod to the rear part of the shoe, instead of to the front part, which is substantially the only difference that there seems to be in the mode of construction, cannot constitute a difference in principle, and cannot prevent the defendants' machine from being an infringement of the plaintiff's patent. It may be said that there are differences also between the defendants' machine and that of the plaintiff, in the manner in which the arm is attached to the vibratable link, and also as to the mode in which the force applied to the arm may operate upon the finger-bar; but these are differences of form, and not of substance.' The specification referred to in that opinion as the specification of the defendants, and quotations from claims 2, 5, and 7 in which are made, is a patent under which the defendants' machines were constructed, No. 193,770, granted July 31, 1877, to Leander J. McCormick, William R. Baker, and Lambert Erpelding, assignors to C. H. and L. J. McCormick. The invention of the patentee is carried back to November or December, 1863, at which time he made a model containing his perfected invention, which he shortly afterwards sent to his patent solicitors, and which was sent to the patent-office with the applicable sworn to February 25, 1864, and filed December 4, 1865. The delay seems not to have been attributable to the applicant. The patents introduced in this case as affecting the questions of novelty and infringement, and which were prior to the invention of Graham, and which seem to be relied on by the appellee, were as follows: To George C. Dolph, No. 18,141, issued September 8, 1857; to W. S. Stetson and R. F. Maynard, No. 24,063, issued May 17, 1859; the Zug patent; the Ball patent; and one to Stephen S. Bartlett, No. 34,545, issued February 25, 1862. We are of opinion that the circuit court took an erroneous view of the question of infringement. The capacity of the fingerbeam to 'rise and fall freely at either end.' spoken of in the specification of the plaintiff's patent, was not a new thing with him, but had been used for many years in mowing and reaping machines, the finger-beam moving on a pivot at its inner end; and the plaintiff, in the specification of his patent of July 23, 1867, stated that he did not claim the connecting of the finger-bar, I, to the bar, J, by the joint, h, because that had been previously done. It was also old to have a lever connected by a loose connection, by which the driver could tip up the front edge of the finger-bar arbitrarily, and secure it so that it could not fall below the inclination at which he had set it, although it was left free to tip up further automatically. The arrangement spoken of in the plaintiff's specification, whereby the finger-beam can 'rock forward and backward without twisting the link that forms its connection with the gearing-carriage,' was secured by making the pivot on which the crosswise tilt takes place, at a point in front of the beam, so that the pivot rises and falls with the guard-fingers, and an arm is provided by which the movement of the finger-beam in both directions is controlled by the driver, instead of its being independent of his control in its downward movement, as was the case in prior machines. It is apparent from the proceedings in the patent-office on his application, and from the terms of his specification and of claims 1 and 2 as granted, that the intention was to limit the modification which he made, to the particular location of the swivel-joint, M', on which the crosswise rocking movement takes place, and to the rigid arm by which the positive rocking of the finger-beam in both directions is effected and controlled. In a mowing-machine for cutting grass, where it is desirable to cut near to the ground in order to cut and use as much of the grass as possible, the front edge of the finger-beam must bear closely on the surface of the ground, with a yielding pressure, so that it will rise freely in order to pass over such irregularities in the surface of the ground as do not require that the finger-beam should be bodily lifted. This yielding pressure is secured by a capacity in it to swing upward on its heel as a pivot, because, if its front edge were held rigidly down upon the ground, the guard-fingers would be driven into every obstruction. This necessity does not exist in machines for harvesting grain, because in them the finger-beam is set several inches above the ground, the grain being the desirable object, rather than the straw, and the carrying of the finger-beam at an elevation prevents its meeting with obstructions; and hence there is no such occasion, as in mowing-machines, for its front edge being left free to swing upward. The capacity, if any, which Graham added to the machines in general use, was one for raising and lowering the pivot of oscillation, which had before been stationary, and a further capacity for a positive downward tilt or forward rocking, which enabled the driver to tip up the heel of the finger-beam, and force the fingers under lodged grain of grass. The rocking forward and backward, spoken of in the plaintiff's specification, is applied to a tilting backward which rocks the front of the finger-beam upward, and to a tilting forward which rocks the heel of that beam upward and its front downward. In the defendants' machine there is no such rocking backward and forward, but there is a swinging motion, the same as in the prior Ball patent; the pivot on which the tilting takes place being in the rear of the finger-beam, and there being no means of positively tipping the front of the beam downward, or of raising its heel to force its front edge and the finger-guards downward. In the Ball patent, the draughtrod passes under the finger-beam, and in the defendants' machine the draught-rod passes over the finger-beam, to reach the pivotal point, which is in both cases the same. In both of them the weight of the finger-beam, being in front of the pivot, tends to hold its front edge down upon the ground, but, when the finger-guards strike any elevation, the front edge of the beam swings up freely on its rear pivot, the tendency being for tis weight to carry it back to its original position as soon as the elevation is passed. In the Ball patent there is a lever connected with a chain which can raise the finger-beam or hold it up, but cannot affirmatively depress it, its downward movement being dependent solely upon the fact that its weight is in front of the pivot on which it turns. In the defendants' machine there is a substitute for the Ball chain, namely, a loose sliding link, which permits of the same upward movement that the chain does, and which cannot force or hold the beam down. In both the Ball machine and the defendants' machine, the propelling force from the draught-rod is exerted from the pivot in the rear, and in both the front edge of the finger-beam, where the guards are situated, is left free for the swinging movement above mentioned. In contradistinction to this, the pivotal connection between the finger-beam and the draught-rod in the plaintiff's machine, instead of being at the heel of the finger-beam, is placed in front of it, at the swivel-joint, M', and a rigid arm, l, is mounted on a vibratable link, so that the beam can thereby be rocked backward and forward by the driver, to tip the heel of the shoe up and the front down, or the front up and the heel down; the heel of the finger-beam being lifted by the forward rocking of the arm, l, and its front being lifted by the backward rocking of such arm. By the locking of the lever which works the arm the finger-beam can be set at any desired inclination. The movement of the finger-beam in each direction is positive. In the defendants' machine it swings on a pivot at its rear, which is not raised or lowered by the upward or downward tilt of the guard-fingers, while in the plaintiff's machine, as the finger-beam rocks on the swivel-joint, M', the heel of the finger-beam is lifted from the ground as the fingerguards are turned downward. In the Zug patent of October, 1859, there is a finger-beam attached to the rear end of the machine by a vibratable link, which is itself attached at its rear end loosely to the machine, and is also fitted loosely within the draught-rod, so that there is a considerable rising and falling motion to the front end of the shoe, whereby the guard-fingers can be elevated and depressed to a considerable extent, and in substantially the same manner as in the defendants' machine, the raising and lowering of them being accomplished at a similar point as in the defendants' machine; the difference in the rising and falling motion of the finger-beam in the Zug and in the defendants' machine being a difference only in degree. In the Ball patent of October, 1859, there is a finger-beam attached by a hinged, vibratable link, and there is a draught-rod, which is hinged at its front end. A shoe is attached to the rear end of the draught-rod, with a free up-and-down hinged joint. The finger-beam of the machine is attached in front of this hinge, and such hinged connection admits of the rising and falling of the front of the shoe and of the finger-beam. This motion is not a rocking motion, as in the plaintiff's patent, but is substantially the same rising and falling motion that is found in the defendants' machine,—the only material difference being that, in the Ball patent, the draught-rod extends under the shoe and the finger-beam, and prevents them from falling down lower than a horizontal position; whereas, in the defendants' machine, the draught-rod extends over the shoe and finger-beam to the same point of attachment as in the Ball patent, and thus the finger-beam can fall lower than in the Ball patent, and even below a horizontal position; but the finger-beam in the Ball patent can rise and fall as freely at either end as in the defendants' or the plaintiff's machine, and the crosswise rising and falling motion in the Ball patent is of the same character as in the defendants' machine, but wholly unlike the rocking motion, or the forward and backward motion, of the finger-beam in the plaintiff's patent. In the Bartlett patent of February, 1862, there is a finger-beam attached at its rear by a vibratable link, which has a swivel-joint at its outer end, and a free joint at its inner end, in connection with a shoe and with a draught-rod which extends from the front end of the machine to the rear end of the shoe, and the finger-beam is attached to the shoe in front of the vibratable link. There is also a lever which rocks forward and backward, and is so arranged that the finger-beam and the draught-rod rise and fall, and the finger-beam rocks forward and backward, substantially in the same manner as in the plaintiff's patent, though with a less perfect motion. But there is considerable forward and backward rocking motion, and the rocking takes place with substantially rigid lever devices, and there is substantially the same rising and falling motion of the finger-beam at either end as in the plaintiff's patent. In view of this prior state of the art, the question of infringement stands in this way: In the defendants' machine there is, in combination with the gearing-frame, a vibratable link connection with the finger-beam, not very materially different from the vibratable link connection in the plaintiff's patent; but the draught-rod in the defendants' machine is different from that of the plaintiff's patent, in that its forward connection is not substantially a swivel-joint, but is so hinged as to afford no torsional action, and the draught-rod is connected with the shoe at nearly the extreme rear end of the shoe, while the draught-rod in the plaintiff's patent has swivel-joints at both its forward and rear ends, and such joints have substantially a free torsional capacity. So, too, the draught-rod in the plaintiff's patent is attached to the shoe in front of the finger-beam, instead of at the extreme rear end of the shoe, as in the defendants' machine. As a consequence of these several arrangements, the finger-beam in the plaintiff's patent rocks freely both forward and backward, in such manner that the rear of the finger-beam may be elevated and the guards be thrown down, or the front of it may be elevated and the guards be thrown up, with an equal rocking motion in either direction; whereas, in the defendants' machine, when the finger-beam is operated upon by the lever, the front part of it merely rises and falls with a swinging motion from its pivoted point in the rear. The defendants' machine differs from the plaintiff's patent, in that its finger-beam cannot be raised at all at its rear by the lifting lever, and cannot be positively moved downward by that lever. Therefore, as the finger-beam in the defendants' machine does not have the motion which results from the combination of the elements specified in the first claim of the plaintiff's patent, and does not 'rock forward and backward' in the sense of that claim, or in the sense described in the specification of the plaintiff's patent, it does not infringe such first claim. Nor does it contain the swivel-joint, M', specified in the first claim, located and operating as in the plaintiff's patent. The first claim of that patent must, in view of the state of the art, and of the special limitations put upon it on the requirement of the patent-office, be limited to the special construction and arrangement set forth in that claim. The same views apply to the second claim of the patent, which contains combined all the elements set forth in the first claim, with the addition of the rigid arm, l. That arm, in the plaintiff's patent, has a rigid connection with the vibratable link to which it is attached, and through such arm the finger-beam is made to rock backward or forward by positive action, in either direction; while in the defendants' machine there is no such rigid arm, but only a connection by which the front of the finger-beam can be lifted, while it falls by its own weight when released, instead of being positively forced down, as in the plaintiff's patent. This species of lifting device was old. In regard to the extracts set forth in the opinion of the circuit court from the defendants' patent of July, 1877, we are of opinion that the second, fifth, and seventh claims of that patent, in speaking of the shoe as 'rocking,' can only refer to its swinging on a hinge at its rear end; and that the term 'rocking' is not used in the sense in which it is used in the plaintiff's patent, because neither in the defendants' patent nor in their machine has their shoe or their finger-beam any such rocking motion as is described in the plaintiff's patent. It results from these views that, on a proper construction of claims 1 and 2 of the plaintiff's patent, the defendants have not infringed it; and that the decree of the circuit court must be reversed, and the cause be remanded, with a direction to dismiss the bill of complaint, with costs.
132.US.172	An exception to the refusal of the presiding judge at a jury trial to instruct the jury in language prayed for by counsel is of no avail, if the refusal be followed by instructions m the general charge, substantially to the same effect, but in the language of the court. A general exception to the whole of a charge to the jury will not avail a plaintiff in error if the charge contains distinct propositions and any one of them is free from objejtions.	This was an action by the plaintiff to recover damages from the Louisville & Nashville Railroad Company for injuries suffered by him by reason of the derailment of a car attached to a train belonging to that company, in which he was being carried as a passenger on its line from Louisville, Ky. to St. Louis, Mo. The answer of the defendant set up that the accident was caused by reason of a latent or hidden defect or flaw in the body of a steel rail laid on the track of the road, a defect which no outward inspection could detect. Issue being joined, the case was brought to trial, and certain instructions to the jury were requested by the plaintiff, which set forth, with substantial accuracy, the liability of railroad companies for having defective roads, by which accidents are caused to passengers traveling in their cars. These instructions were refused, and to the refusal exceptions were taken. These exceptions, however, cannot avail the plaintiff in error because the substance of the instructions refused was contained in the charge subsequently given by the court. The object of the instructions was to impart such information as would govern the jury in their deliberations, and guide to a right conclusion in their verdict. Such information can generally be most advantageously given after the conclusion of the testimony and the argument of counsel; and it is not material whether it be then given immediately in response to the request of counsel, or be contained in the formal charge of the court. The charge itself, though embodying the substance of the instructions asked, also referred to other matters presenting distinct propositions of law; but to none of them was any exception taken pointing out specifically the matter objected to. Only a general exception to the whole charge was made; and a general exception of that kind will not avail a plaintiff in error, where the charge contains distinct propositions, and any one of them is free from objection. The whole charge must be substantially wrong before such a general exception will avail for any purpose. This is the settled law, established by numerous decisions of this court Lincoln v. Claflin, 7 Wall. 132, 139; Cooper v. Schlesinger, 111 U. S. 148, 151, 4 Sup. Ct. Rep. 360; Railway Co. v. Jurey, 111 U. S. 584, 596, 4 Sup. Ct. Rep. 566; Burton v. Ferry Co., 114 U. S. 474, 476, 5 Sup. Ct. Rep. 960. It is also required by the fourth rule of this court, which provides as follows: 'The judges of the circuit and district courts shall not allow any bill of exceptions which shall contain the charge of the court at large to the jury in trials at common law, upon any general exception to the whole of such charge. But the party excepting shall be required to state distinctly the several matters of law in such charge to which he excepts; and those matters of law, and those only, shall be inserted in the bill of exceptions, and allowed by the court.' Whatever, therefore, may be the actual merits of the plaintiff's claim to damages, nothing is presented to us by the record which we can examine. Judgment affirmed.
132.US.161	The improvement in grain-car doors, as claimed by Chauncey R. Watson and patented to him by letters patent No. 203,226, dated April 30, 1878, may have been new and useful, but did not involve the exercise of the inventive faculty, and embraced nothing that was patentable.	The proof of the use of grain-car doors by the defendant was contained in a stipulation whereby it was agreed 'that the defendant had hauled over its line of road, in the state of Indiana, freight-cars belonging to the Chicago, Rock Island & Pacific Railway Company, having a solid outside door, like an ordinary freight-car, and an inner flexible sliding grain-door of less height than the opening in the side of the car; the grain-door sliding in grooves like the grooves shown in the patent of Martin M. Crooker, of May 26, 1868, and the slats composing the door being attached to each other by being strung upon wires passing through the slats.' Watson's application was dated February 18, 1878, and contained the following claims: '(1) A grain-door, constructed of longitudinal sectional pieces, hinged or strapped together in such manner as that the door, as a whole, may yield, to follow any desired line of movement, when it is not in use as a grain-door, and it is desired to place it out of the way, substantially as herein described. (2) A grain-door, D, constructed as above described, and hinged or strapped so as to be flexible or yielding, for the purpose set forth, in combination with the guiding rods, C, whereby, when not in use, it may be carried up and placed in the horizontal portion of said guiding rods, so as to be out of the way, substantially as described. (3) A grain-door, D, constructed as described, and provided with staples, c, c, in combination with guiding rods, C, and devices for affixing it to the top of the car, substantially as described, and for the purposes set forth.' The application was rejected March 8, 1878, the examiners stating: 'This 'grain-door' differs from Crooker's (May 26, '68, No. 78,188, carpentry doors) 'railroad car' only in the name, and in this: that the upper portion of Crooker's door is cut off to make applicant's. The rods and staples are substitutes for Crooker's channel-irons,—obvious to any skilled workman.' Watson then, on the 18th of March, 1878, amended his specification by inserting: 'This invention relates to improvements in the class of graindoors for cars, and the invention consists in the combination, with a car, of an inside vertically sliding flexible or yielding door and guiding rods, whereby the door, when not in use, may be carried up and placed on the horizontal portion of said guiding rods, so as to be out of the way.' 'I am aware that a car-door of similar construction, sliding in grooved ways, is old; and such I do not desire to claim, broadly, as my invention. Said door, however, constitutes an outside or closing car-door proper, and the car could not* be loaded or used for bulk grain unless the grain is put in from the roof of the car, as the door completely closes the doorway or opening. Furthermore, said door is obviously objectionable for other reasons, viz.: The grain will lodge or get in the grooved ways in which the door slides, binding or locking it so as to prevent its being raised, and also, being an outside door, the grain, pressing against it, would force or bulge the door outward, producing a similar effect as the grain lodging in the grooved ways; whereas my door, being an inside door, and not reaching the top of the doorway or opening, admits an open space at the top for loading in the grain, with an ordinary outside door, to be locked or otherwise secured after the car is loaded. By also employing guiding rods for the door to slide upon, and being an inside door, the defects incident to the grooved ways and an outside door, before referred to, are entirely obviated.' And at the same time he substituted for his first and second claims the following: '(1) The combination, with a car, of an inside flexible or yielding and vertically sliding grain-door and guiding rods, C, whereby said door, when not in use, can be carried up and placed on the horizontal portions of said guiding rods, out of the way, substantially as and for the purpose herein shown and described.' March 20th, the application was again rejected, the examiners stating: 'It is not considered that Crooker, in removing the upper few slats of his door, would be making a patentable improvement on his own invention, albeit he might change its name, and allege the result of loading in over the top of his door. The change is an obvious one to any user of freight-cars; further, the use of rods and eyes is old in this connection. See patent of H. L. Clark, Aug. 29, '71, No. 118,514, (carpentry doors,) which further confirms the former action in relation thereto. In regard to the clogging and binding referred to in argument, no clear or considerable results are seen to be accomplished by applicant's device over the reference, such as should argue any invention thereon.' Watson then, on the 21st of March, 1878, further amended by substituting for the first and second claims the following: 'The combination, with a car, of an inside flexible or yielding sliding grain-door, having staples, c, and the vertical and horizontal bent guiding rods, C, extending from the floor of the car upwardly, and under the roof of the car, as herein shown and described, whereby said door, when not in use, can be carried up on the horizontal portions of said guiding rods, out of the way, substantially as specified.' The examiners again responded, March 23, 1878: 'The application does not present patentable novelty over Crooker, cited. In view of the state of the art as shown by the references cited, the use of eyes and rods for guiding the sliding door are the simple mechanical equivalents of the channel irons of Crooker. As claim does not differ in a matter of substance from the preceding, it is a second time rejected.' An appeal was prosecuted to the examiners in chief, who reversed the decision, saying: 'The invention in this case is small, and the claim is correspondingly limited. It consists of a combination of various instrumentalities not found in either of the references. Applicant's car, as a whole, is adapted by convertibility to uses not compatible with the cases cited, without injury. In this case the flexible door is applied in addition to the usual slide-doors, and when coarse freight is to be carried the flexible shutters are secured in place at the top under the roof of the car.' The door in use upon the freight-cars which appellee hauled over its road was a grain-door sliding in grooves. The Watson door was carried on rods with staples. Even if there was no material difference between a doorsliding in grooves and a door sliding on rods and staples, there was no infringement, for Watson had in effect disclaimed a door sliding in grooves by his amendments, and the terms of his specification as they stood amended; and in the narrow claim of his patent the staples, c, and the guiding rods, C, were part of his combination, which he could not, under the circumstances, say were not essential to it, nor that the grooves were an equivalent. Gage v. Herring, 107 U. S. 640, 2 Sup. Ct. Rep. 819; Fay v. Cordesman, 109 U. S. 408, 3 Sup. Ct. Rep. 236. But counsel for appellant insists that Watson's real invention 'was not a question of rods or grooves, but was the combination, in a freight-car having an outside rigid door, of an inner flexible sliding grain-door.' The Crooker door was patented May 26, 1868, and made of separate strips attached to each other by long continuous metal straps, so as to be flexible, and capable of being slid up out of the way, under the roof of the car, in grooves of channel irons affixed to the inside of the door-posts, but was a full, and not a half, door. One of the doors was an inside door, as appears from the drawings, and was described in his specification as follows: 'B, B, and B', B', are metallic grooved ways applied at the margin of the door-spaces, d, d, and partially across the car, immediately under the roof of the same; the vertical portions of the ways, B', B', being on the inside of the car, just at the edge of the said spaces, and firmly bolted in place upon the car-framing; or, if preferred, these vertical portions may be in the door-space itself, as is the case with those of the ways, B, B.' The Clark patent was issued August 29, 1871, for a rigid grain-door, filling only half the opening, and sliding on rods to the top of the car, where it was then swung up into a horizontal position, turning on eyes at the upper corners of the rods. The evidence established that inside graindoors, filling only part of the opening, had long been used on freight-cars in connection with the outside door. Watson's door was made of separate slats, united to each other by hinges, and provided with staples at both ends, that encircled the guiding rods, on which the door might be slid up under the roof of the car, so as to be out of the way. Making Crooker's door smaller, so as to fill only half the opening, and using it in connection with an ordinary outside door, in combination with a car, is the invention claimed. We agree with the learned judge holding the circuit court when he says, 'There is nothing in either specification or claim concerning 'ordinary freight-cars, nor solid sliding outside doors; and in the claim, nothing about outside doors at all, unless inferred from the description given of an inside door. If, however, such an inference is permissible, and the patent must or may be construed to consist in such a combination of inside and outside doors as is asserted, it cannot be upheld, because it does not involve invention, but consists in a mere aggregation of parts, each to perform its separate and independent function, substantially in the same manner as before combination with the other, and without contributing to a new and combined result. The outside door certainly remains unaffected in construction and in use; and the inner door is the same as the Crooker door, with a few slats left off or taken off by design or by accident; and, whether done in one way or the other, the change cannotreasonably be called 'invention,' unless the distinction between mere mechanical skill and inventive genius is to be disregarded.' There was nothing new in flexible or rigid doors, outside and inside. There was nothing new in the use of outside and inside rigid doors in combination, the inside door filling only part of the opening. The substitution of the old flexible sliding inside door, reduced in size to correspond with the old inside rigid grain-door, may have required some mechanical skill, and may have been new and useful, but it did not involve the exertion of the inventive faculty, and embraced nothing that was patentable. Thompson v. Boisselier, 114 U. S. 1, 11, 12, 5 Sup. Ct. Rep. 1042, and cases there cited; Stephenson v. Railroad Co., 114 U. S. 149, 5 Sup. Ct. Rep. 777. The decree was right, and it is affirmed.
130.US.343	The act of March 3, 1885, 23 Stat. 385, c. 341, § 9, was enacted to transfer to Territorial Courts, established by the United States, the jurisdiction to try the crimes described in it (including the crime of murder), under territorial laws, when sitting as and exercising the functions of a Territorial Court; and not when sitting as or exercising the functions of a Circuit or District Court of the United States under Rev. Stat. § 1910.	This is a petition for a writ of habeas corpus to be directed to the marshal of the United States for the territory of Arizona, who, it is alleged, holds the petitioner under a judgment of the district court of the United States for the Second judicial district of that territory, which condemned him to death for the crime of murder. This crime is alleged in the indictment to have been committed by the defendant, an Apache Indian, within said district, naming no county or other location. The allegation of the petitioner is that the court which tried him had not at that time, and in the mode of trial which was pursued, any jurisdiction of the case against him. It is argued by counsel, and alleged in the petition, that the district courts of the United States in the territory of Arizona, as in all other territories, have two distinct jurisdictions; that in the one they sit to exercise the powers and to try the same class of cases that the circuit courts of the United States do within the states, and in the same manner, while in the other they sit as courts having jurisdiction of the ordinary contests between private parties and of criminal offenses arising under the territorial laws. The controversy in this case seems to turn upon the question whether the offense for which Gon-shay-ee was tried was an offense against the laws of the United States, and was of that character which ought to have been tried by the court sitting to try such cases, or whether it was an offense against the laws of the territory, and should have been tried under those laws and by the court sitting to administer justice under them. The petitioner alleges that the offense with which he was charged was of the latter class, but that he was tried by the court while it was exercising its functions under the former. The record of the case commences with the following statement of the finding of the indictment: 'In the District Court of the Second Judicial District, County of Maricopa, Territory of Arizona. May term, A. D. 1888, sitting for the trial of all cases arising under the constitution and laws of the United States, and having and exercising the same jurisdiction in all cases arising under the constitution and laws of the United States as is vested in the circuit and district courts of the United States, at a term thereof held at the city of Phoenix, in the county of Maricopa, in said district and territory, on the 29th day of May, A. D. one thousand eight hundred and eighty-eight. The United States of America vs. Gon-shay-ee. Indictment. Second Judicial District, Territory of Arizona. The grand jurors of the United States of America, within and for the Second judicial district, territory of Arizona being duly impaneled, sworn, and charged to inquire within and for the body of said district of all offenses committed therein against the United States of America, upon their oath present: That Gon-shay-ee, an Apache Indian, late of the Second judicial district, territory of Arizona, with force and arms, in said district and territory, on or about the 5th day of June, A. D. one thousand eight hundred and eighty-eight, and before the finding of this indictment, did then and there feloniously, willfully, deliberately, premeditately, and with malice aforethought, make an assault on a human being, to-wit, William Deal, in the peace of the United States then and there being, and with a certain gun, which then and there was loaded with gunpowder and a leaden bullet, and by him, the said Gon-shay-ee, had and held in his hands, he, the said Gon-shay-ee, did then and there feloniously, willfully, deliberately, premeditately, and with malice aforethought, shoot off and discharge at, to, against, and upon the said William Deal, thereby and by thus striking the said William Deal with the said leaden bullet, inflicting on and in the body of him, the said William Deal, one mortal wound, of which mortal wound the said William Deal then and there instantly died. And so the grand jurors aforesaid, upon their oath aforesaid, do say that the said Gon-shay-ee, an Apache Indian, in the manner and form aforesaid, and at the time and place aforesaid, did him, the said William Deal, feloniously, willfully, deliberately, premeditately, and with malice aforethought kill and murder, against the peace of the United States, and their dignity, and contrary to the form of the statute in such case made and provided. O. T. ROUSE, United States Attorney.' The record of the final judgment of the court is in the following language: 'United States of America—District Court Second Judicial District of Arizona. Having and exercising the same jurisdiction under the constitution and laws of the United States as is vested in the district and circuit courts of the United States. Regular May term, A. D. 1883. June 14, A. D. 1888. Present: Hon. Wm. M. Porter, District Judge. United States of America, Plaintiff, vs. Gon-shay-ee, Defendant. Convicted of murder. The defendant, being present in open court in person, and by his counsel, H. N. Alesander and by his counsel, H. N. Alexander O. T. Rouse and Joseph Campbell, present on the part of the United States; and this being the time heretofore fixed for passing judgment on the defendant in this case,—the defendant, Gon-shay-ee, was duly informed by the court of the nature of the indictment found against him for the crime of murder committed on or about the 5th day of June, A. D. 1887; of his arraignment and plea of 'not guilty as charged in the indictment;' of the trial, and the verdict of the jury on the 4th day of June, A. D. 1888, guilty of murder as charged in the indictment. The defendant was then asked if he had any legal cause to show why judgment should not be pronounced against him; and, no sufficient cause being shown or appearing to the court, thereupon the court renders its judgment that whereas, you, Gon-shay-ee, having been duly convicted in this court of the crime of murder, it is found by the court that you are so guilty of said crime. It is considered and adjudged, and the judgment of the court is, that you, Gon-shay-ee, be removed hence to the county jail of Maricopa county, or some other place of secure confinement, and there be securely kept until Friday, the 10th day of August, A. D. 1888, and on that day you be taken by the United States marshal of the territory of Arizona, to and within the yard of the jail of said Maricopa county, Arizona, and between the hours of nine o'clock A. M. and five o'clock P. M. of that day, by said marshal, you be hanged by the neck till you are dead.' It is very clear from these transcripts of the proceedings in the court below that on this trial it proceeded and considered itself as acting as a court for the trial of offenses arising under the constitution and laws of the United States, and as administering them with the same powers as those vested in the circuit and district courts of the United States generally. The grand jurors are described as 'the grand jurors of the United States of America within and for the Second judicial district, territory of Arizona, being duly impaneled, sworn, and charged to inquire within and for the body of said district of all offenses committed therein against the United States.' The court was held in the city of Phoenix, in the county of Maricopa, and the offense is described as having been committed within the Second judicial district of the territory, without any further reference to the county in which the act was done. In the final judgment of condemnation it is declared to be rendered in the 'district court, Second judicial district of Arizona, having and exercising the same jurisdiction under the constitution and laws of the United States as is vested in the district and circuit courts of the United States.' Both the grand and the petit jurors were summoned by the marshal of the United States, and the execution of the sentence was imposed upon that officer, who now holds the prisoner in custody under it. If the court which tried the prisoner had been sitting for the trial of offenses committed against the territorial law, all this would have been different. The grand jury would have been summoned for the county in which the act was committed, and from the body of that county, by its sheriff, and the case would have been tried by the court sitting in that county, unless for exceptional reasons, which do not appear in this case. The prisoner would, on conviction, have been held by the sheriff, who would have had the execution of the sentence committed to him under a warrant from the court. All these circumstances are so variant, in the nature of the jurisdiction and the mode in which it must be exercised, that the conviction of the prisoner under the one mode by the law prescribed for the procedure under the other cannot be held to be within the power of the court which proceeded under the wrong jurisdiction. That there exists this system of a distinct jurisdiction, administered by the same court, in the territory of Arizona, as it does in nearly all the others, is undoubted. The language of section 1910 of the Revised Statutes points very clearly to this distribution of the functions of the courts of the United States in the territories. It reads as follows: 'Each of the district courts in the territories mentioned in the preceding section shall have and exercise the same jurisdiction, in all cases arising under the constitution and laws of the United States, as is vested in the circuit and district courts of the United States; and the first six days of every term of the respective district courts, or so much thereof as is necessary, shall be appropriated to the trial of causes arising under such constitution and laws; but writs of error and appeals in all such cases may be had to the supreme court of each territory, as in other cases.' It may be safely assumed that the practice of the territorial courts, from their first organization, has been to observe this separation of their functions. The payment of the expenses of the court, while sitting, as it declares in the caption above quoted, to administer the laws of the United States, with the same jurisdiction as is vested in the circuit and district courts of the United States, is made by the federal government, on accounts kept and rendered by its officers; while the same courts, when held within the different counties of the territories to administer the territorial laws, whether criminal or civil, are paid by the county, or in some other mode prescribed by the legislature of the territory. The following language was used by this court in Ex parte Crow Dog, 109 U. S. 556, 560, 3 Sup. Ct. Rep. 398: 'The district court has two distinct jurisdictions. As a territorial court it administers the local law of the territorial government; as invested by act of congress with jurisdiction to administer the laws of the United States, it has all the authority of circuit and district courts. So that, in the former character, it may try a prisoner for murder committed in the territory proper, under the local law, which requires the jury to determine whether the punishment shall be death or imprisonment for life, (Laws Dak. 1883, c. 9;) and, in the other character, try another for a murder committed within the Indian reservation, under a law of the United States, which imposes, in case of conviction, the penalty of death. Section 2145 of the Revised Statutes extends the general laws of the United States as to the punishment of crimes committed in any place within their sole and exclusive jurisdiction, except the District of Columbia, to the Indian country, and it becomes necessary, therefore, to inquire whether the locality of the homicide, for which the prisoner was convicted of murder, is within that description.' The question in this case is whether the offense charged against Gon-shay-ee was one committed against the laws of the United States, within the meaning of the distinction which we have been taking; or whether it was an offense against the laws of the territory, to be punished by a court proceeding under its laws. It may be conceded that prior to the statute of 1885, so far as Indians could be punished for offenses of this kind in any court, either federal or territorial, the jurisdiction would belong to the one sitting under the first branch, and exercising the judicial functions appropriate thereto. It is clearly otherwise by the act of March 3, 1885, (23 St. 385.) The only portion necessary for our present consideration is the ninth section, which reads as follows: 'That immediately upon and after the date of the passage of this act all Indians committing against the person or property of another Indian or other person any of the following crimes, namely murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny, within any territory of the United States, and either within or without an Indian reservation, shall be subject therefor to the laws of such territory relating to said crimes, and shall be tried therefor in the same courts and in the same manner, and shall be subject to the same penalties, as are all other persons charged with the commission of said crimes, respectively; and the said courts are hereby given jurisdiction in all such cases; and all such Indians committing any of the above crimes against the person or property of another Indian or other person within the boundaries of any state of the United States, and within the limits of any Indian reservation, shall be subject to the same laws, tried in the same courts, and in the same manner, and subject to the same penalties, as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.' This is the last section of the Indian appropriation bill for that year, and is very clearly a continuation of the policy upon which congress entered several years previously, of attempting, so far as possible and consistent with justice and existing obligations, to reduce the Indians to individual subjection to the laws of the country, and dispense with their tribal relations. This matter was fully commented upon in the Case of Crow Dog, already referred to, and in U. S. v. Kagama, 118 U. S. 375, 3 Sup. Ct. Rep. 1109, in which the whole history of the relations between the United States and the Indians was discussed. The latter case arose under the statute of 1885, now under consideration, which was construed in the opinion of the court, and the distinction clearly pointed out between offenses committed against the laws of the United States, within the limits of an organized state of the Union, and those committed within the territories. It is there declared that the enactment is clearly separable into two distinct definitions of the conditions under which Indians may be punished for the same crimes. The first is where the offense is committed within the limits of a territorial government, whether on or off an Indian reservation, and 'the second is where the offense is committed by one Indian against the person or property of another, within the limits of a state of the Union, but on an Indian reservation.' In that case the offense was charged to have been committed within the boundaries of a state of the Union, and the Indian was tried in the circuit court of the United States for the district of California, from which a certificate of a division of opinion was made to this court, embracing the question whether a murder committed by an Indian on the reservation of Hoopa valley, in that state, could be tried in that court. We held that the statute gave this jurisdiction, and that it was constitutional. Incidentally, however, in remarking upon cases of crime committed by Indians in the territories, the court said that 'in this class of cases the Indian charged with the crime shall be judged by the laws of the territory on that subject, and tried by its courts.' The distinction between the trial in such cases by a court sitting as a circuit court of the United States to try offenses against the federal laws, and that in which it sits as a territorial court to punish crimes against the laws of the territory, was not clearly stated in that opinion. We have already shown that such a distinction exists, and have little hesitation in holding that under the act of 1885 the case of Gon-shay-ee should have been considered as an offense against the laws of the territory. That statute evidently intended to provide for the punishment of all cases of 'murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny,' committed by Indians within any territory of the United States, whether within or without an Indian reservation; and the declaration is clear that they 'shall be subject therefor to the laws of such territory relating to said crimes, and shall be tried therefor in the same courts, and in the same manner, and shall be subject to the same penalties, as are all other persons charged with the commission of said crimes, respectively.' These Indians, then, are subjected by this statute, not to the criminal laws of the United States, but to the laws of the territory. The statute does not even define the crimes of 'murder,' 'manslaughter,' etc., but this must be governed by the laws of the territory, so far as they furnish any definition of the crime. There is no language which declares that they shall be tried in the courts of the United States under the same circumstances as similar offenses committed by Indians within the states; but the second provision, which prescribes the punishment of the same offenses when committed by Indians if within the boundaries of any state, and within the limits of any Indian reservation, declares that they 'shall be subject to the same laws, tried in the same courts, and in the same manner, and subject to the same penalties, as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.' This phrase, 'within the exclusive jurisdiction of the United States,' is well understood as applying to the crimes which are committed within the premises, grounds, forts, arsenals, navy-yards, and other places within the boundaries of a state, or even within a territory, over which the federal government has by cession, by agreement, or by reservation exclusive jurisdiction. Those cases are tried by circuit or district courts of the United States, administering the laws of the United States, and not by the courts of the state or those of the territory. The framers of this act were very careful, in this part of the statute, where the offense was committed within the territorial limits of a state, to declare that a violation of the laws of the United States in regard to these crimes of murder, etc., should be tried in the courts exercising the jurisdiction of the United States to punish offenses against the United States. With regard to the territories, however, it is different. The declaration is that the Indians shall be tried by the courts of the territory, and according to its laws, and shall be subject to the penalties which those laws prescribe. They are to be tried in the same manner and in the same courts as are all other persons charged with the commission of said crimes, respectively, and the said courts are given jurisdiction in all such cases. It will be observed also that this part of the statute makes no distinction in regard to whether the crime was committed by the Indian on or off an Indian reservation. We do not entertain any doubt that this part of the statute was enacted to transfer to the territorial courts established by the general government, as all courts of general jurisdiction are in the territories, the jurisdiction to try the crimes described in it under the territorial laws, when sitting as and exercising the functions of such territorial court, as pointed out in the Case of Crow Dog. The distinctions incident to this mode of trial have already been indicated. They are important, relating to the jurisdiction, and concerning the life and the liberty of the party against whom a crime is charged. Whether a man shall be tried in the county where the offense was committed, or carried to some other county, perhaps hundreds of miles distant, is a matter of much consequence; it is of the venue of the trial. Whether he shall be tried by a jury summoned by the marshal of the United States from the whole territory, or from a section of it, amounting possibly to one-third of its extent, or by a jury of the county in which the act was done, by the sheriff of the county, is of much moment to him; so also as to whether he shall be indicted by a grand jury summoned to serve for the county, and residents of the county, or by such a body summoned from the whole territory. It is of consequence that in this new departure which congress has made, of subjecting the Indians, in this limited class of cases, to the same laws which govern the whites within the territories where they both reside, the Indian shall at least have all the advantages which may accrue from that change, which transfers him, as to the punishment for these crimes, from the jurisdiction of his own tribe to the jurisdiction of the government of the territory in which he lives. We are of opinion that the writ of habeas corpus should issue as prayed for in this case, and it is so ordered.
132.US.98	The fourth claiminn the reissued letters patent No. 8388, granted August 27 1878, to Augustus Day for an improvement in track clearers, viz., "The combination with the draw-bar 0 and scraper A of the diagonal brace E, as and for the purpose set forth," would naturally suggest itself to any mechanmc, and involves no patentable novelty. A claim in letters patent must be held to define what the Patent Office has determined to be the patentee's invention, and is not to be enlarged in construction beyond the fair interpretation of its termst IN EQUITY for the infringement of letters patent. Decree dismissing the bill. Complainant appealed. The case is stated in the opinion.	Augustus Day filed his bill in equity against the Fair Haven & Westville Railway Company in the circuit court of the United States for the district of Connecticut, alleging an infringement of the fourth claim of reissued letter patent No. 8,388, dated August 27, 1878, for an improvement in track clearers. The defense was that the claim lacked patentable novelty, unless construed to contain parts not mentioned in it, and, if so construed, then that there had been no infringement. The circuit court (SHIPMAN, J.) decided (Day v. Railroad Co., 23 Fed. Rep. 189) that the claim did not cover patentable novelty, and dismissed the bill accordingly, and from this decree the cause was brought to this court by appeal. So much of the specification as is necessary to be quoted here states that 'the nature of this invention relates to an improvement in the construction of railway track cleaning devices, and the means of operating them, being more especially designed to be attached to horse-cars for the purpose of removing snow, ice, mud, and other obstructions from the rails, and immediately at the sides thereof; and it consists in the combination of a pair of independently acting scrapers, pivotally secured to the floor of a car, and resting upon the track, when in operation, wholly by their own weight, with means for raising and lowering such scrapers simultaneously; in the combination, with an independently acting scraper, resting, when in operation, wholly by its own weight upon the track, of a draw-bar in the direct line of draft, and a supplementary and diagonal draw-bar, which at the same time acts as a brace, the forward ends of both ofsaid draw-bars being secured on the same axial line; in the peculiar construction and arrangement of a cast shank with relation to the scraper, which is secured thereto, and the draftirons, which connect it to the under side of the car; in the pendent guards, which lift the scraper from the track on meeting with an obstruction on the outside of the rail, and deflect outwardly from the track, and in a peculiar crank for operating the shaft which raises and lowers the pair of scrapers at each end of the car, as more fully hereinafter set forth. In the drawing, A represents my scraper, being a plate of sheetmetal of the form shown, slightly curved in cross-section. The front end of this scraper is rounded off at its lower edge, as shown in the drawings, to allow it to pass, without jar or danger of breaking, over the ends of rails that may be projected above the plane of the adjacent rails. The lower edge of the rear part of the wing of the scraper is cut away, as shown, to allow it to pass over pavement or earth at the side of the track which projects above the rail, thereby preventing such projecting matter from lifting the scraper proper from the face of the rail. Bis the shank, to which it is secured by the bolts, a, a. This shank is a casting in the form shown in Fig. 2. It is formed with a pair of longitudinal ribs, b, on top, to receive the end of the draw-bar, C, whose other end is pivoted to a hanger, D, pendent from the car; or it may be pivoted directly to the sill of the car. The shank is also fitted or cast with diagonal studs, c, on top of said ribs, b, to receive the outer end of a diagonal brace, E, whose other end is pivoted to a hanger, D', paralled with the hanger, D, but near the longitudinal center of the car, both draw-bar and diagonal brace being thus pivoted on the same axial line, so that, when it is desired to raise and lower the scrapers, the same will be done without disturbing the vertical position thereof with relation to the track, as would be done were there but one pivotal point. While the scraper and the parts to which it is attached are free to move in a vertical plane, this brace, E, effectually resists any lateral pressure to which the scraper may be subjected in moving obstructions from the rail, its own weight being sufficient to keep it down on the rail. The draw-bar and brace are securely bolted to the shank, and, by the described arrangement of the ribs and studs, perfect accuracy in the 'set' of the scraper is secured,—an essential feature of my invention.' The claims were nine in number, of which the first four are as follows: '(1) In a railway car, a pair of independently acting scrapers, pivotally secured to the floor of the same, and resting upon the track, when in operation, wholly by their own weight, in combination with means for raising and lowering such scrapers simultaneously, substantially as and for the purpose set forth. (2) In a track-cleaning device, the combination, with an independently acting scraper, resting, when in operation, wholly by its own weight upon the track, of a draw-bar in the direct line of draft, and a supplementary and diagonal draw-bar, which at the same time acts as a brace, the forward ends of both of said draw-bars being secured on the same axial line, substantially as and for the purpose set forth. (3) The construction and arrangement of the shank, B, as described, with relation to scraper, A, draw-bar, C, and diagonal brace, E, as and for the purposes set forth. (4) The combination with the draw-bar, C, and scraper, A, of the diagonal brace, E, as and for the purpose set forth.' But it was stipulated that the complainant did not seek to recover except under the fourth claim. The original patent, No. 125,547, was granted April 9, 1872, and the original specification did not contain the words italicized above, nor the first and second claims. Upon the hearing, the complainant adduced the evidence of certain expert witnesses, who testified, on cross-examination, in substance, that the draw-bar, C, performed the office of drawing the scraper along the track, and was assisted in so doing by the diagonal brace, E, which brace also performed the office of preventing the scraper from being removed from the track by the side thrust; that while the diagonal brace assisted in the direct draft, yet its most important function was to prevent the lateral movement of the scraper from the track; that in considering the office performed by the draw-bar, C, and brace, E, that office was the same if they were attached to any scraper in any way, provided an attachment was made; that, so far as the fourth claim of the reissue was concerned, it was not material how the draw-bar and brace were pivoted, except that the pivoting should be on 'the same axial line,' so 'that, when the scraper is lifted from the track, it shall not be moved laterally in either direction.' As already stated, the fourth claim is: 'The combination with the draw-bar, C, and scraper, A, of the diagonal brace, E, as and for the purpose set forth.' Inasmuch as the scraper and draw-bar were both confessdly old, and the primary function of the diagonal brace is manifestly to prevent lateral displacement, the question, assuming that it is the diagonal brace only which is claimed to be new, is whether the application of a diagonal brace to a track-scraper to prevent lateral displacement involves patentable novelty; and this question must be answered in the negative, for we concur with the circuit court that the employment of a brace to effect that purpose would naturally suggest itself to any mechanic, and that its use in that way is within the range of common knowledge and experience. Considered aside from the method of the combination of the parts and the manner of pivoting, the contrivance is a well-known one of obvious suggestion, and used here to perform an office exactly analogous to that in which it has been frequently formerly used. But it is contended on behalf of appellant that as the combination would be inoperative 'for the purpose set forth,' namely, clearing the track of a railway of obstructions, such as snow, ice, mud, etc.,—unless the bottom of the car were treated as part of such combination, the peculiar method of pivoting the draw-bar and the diagonal brace must also be included. The mechanism by which the draw-bar and the diagonal brace are pivoted to the car and fastened to the scraper is not referred to in this claim, although it is in other claims of the series. As the claim must be held to define what the patent-office has determined to be the patentee's invention, it ought not to be enlarged beyond the fair interpretation of its terms. It is true that elements of a combination not mentioned in a claim may sometimes be held included, in the light of other parts of the specification, which may be applicable; but here the claim is so broad that we are not justified in importing into it an element which would operate to so enlarge its scope as to cover an invention in no manner indicated upon its face. As, therefore, the diagonal brace, to enable the scraper to be kept in its place on the track, is the only element of the combination which is claimed to be new, and that involves no patentable novelty, the decree must be affirmed, and it is so ordered.
132.US.125	In an action in the nature of an action on the case to recover from the defendant damages which the plaintiff has suffered by reason of the purchase of stock in a corporation which he was induced to purchase on the faith of false and fraudulent representations made to him by the defendant, the measure of damages is the loss which the plaintiff sustained by reason of those representations- such as the money which he paid out and interest, and all outlays legitimately attributable to the defendant's fraudulent conduct; but it does not include the expected fruits of an unrealized speculation. In applying the general rule that "the damage to be recovered must always be the natural and proximate consequence of the act complained of" those results are to be considered proximate which the wrong-doer, from his position, must have contemplated as the probable consequence of his fraud or breach of contract.	The bill of exceptions states that the court charged the jury, 'as to the law by which the jury were to be governed in the assessment of damages under the issues made in the case,' that 'the measure of recovery is generally the difference between the contract price and the reasonable market value, if the property had been as represented to be, or in case the property or stock is entirely worthless, then its value is what it would have been worth if it had been as represented by the defendant, and as may be shown in the evidence before you.' In this there was error. The measure of damages was not the difference between the contract price and the reasonable market value if the property had been as represented to be, even if the stock had been worth the price paid for it; nor, if the stock were worthless, could the plaintiff have recovered the value it would have had if the property had been equal to the representations. What the plaintiff might have gained is not the question, but what he had lost by being deceived into the purchase. The suit was not brought for breach of contract. The gist of the action was that the plaintiff was fraudulently induced by the defendant to purchase stock upon the faith of certain false and fraudulent representations, and so as to the other persons on whose claims the plaintiff sought to recover. If the jury believed from the evidence that the defendant was guilty of the fraudulent and false representations alleged, and that the purchase of stock had been made in reliance thereon, then the defendant was liable to respond in such damages as naturally and proximately resulted from the fraud. He was bound to make good the loss sustained,—such as the moneys the plaintiff had paid out and interest, and any other outlay legitimately attributable to defendant's fraudulent conduct; but this liability did not include the expected fruits of an unrealized speculation. The reasonable market value, if the property had been as represented, afforded, therefore, no proper element of recovery. Nor had the contract price the bearing given to it by the court. What the plaintiff paid for the stock was properly put in evidence, not as the basis of the application of the rule in relation to the difference between the contract price and the market or actual value, but as establishing the loss he had sustained in that particular. If the stock had a value in fact, that would necessarily be applied in reduction of the damages. 'The damage to be recovered must always be the natural and proximate consequence of the act complained of,' says Mr. Greenleaf, (volume 2, § 256;) and 'the test is,' adds Chief Justice BEASLEY, in Crater v. Binninger, 33 N. J. Law, 513, 'that those results are proximate which the wrong-doer, from his position, must have contemplated as the probable consequence of his fraud or breach of contract.' In that case the plaintiff had been induced by the deceit of the defendant to enter into an oil speculation, and the defendant was held responsible for the moneys put into the scheme by the plaintiff in the ordinary course of the business, which moneys were lost, less the value of the interest which the plaintiff retained in the property held by those associated in the speculation. And see Horne v. Walton, 117 Ill. 130, 141, 7 N. E. Rep. 100, 103; Slingerland v. Bennett, 66 N. Y. 611; Schwabacker v. Riddle, 84 Ill. 517; Fitzsimmons v. Chapman, 37 Mich. 139. We regard the instructions of the court upon this subject as so erroneous and misleading as to require a reversal of the judgment. The five causes of action covered the purchase of 9,525 shares of stock, for which $16,050 in the aggregate had been paid. The plaintiff did not withdraw either of his five counts, nor request the court to direct the jury to distinguish between them. The verdict was a general one for $8,140, and, while it may be quite probable that the jury did in fact, as counsel for defendant in error contends, a ward to the plaintiff under his first cause of action the sum he had paid for the shares he had purchased himself, and interest, we cannot hold this as matter of law to have been so, nor can we determine what influence the erroneous advice of the learned judge may have had upon the deliberations of the jury. Other errors are assigned which we think it would subserve no useful purpose to review. They involve rulings, the exceptions to which were not so clearly saved as might have been wished had the disposal of this case turned upon them, and which will not probably, in the care used upon another trial, be repeated precisely as now presented. For the error indicated the judgment is reversed, and the cause remanded, with a direction to grant a new trial.
129.US.193	A stock-broker received orders by telegraph from his principal to sell certain securities belonging to the principal in his hands and invest the proceeds in certain other securities, named in the order, at a fixed limit. When the telegram arrived the order might have been executed that day, and the securities ordered could have been bought within the limit. The principal was in the habit of dealing with the agent in that way, the agent executing the orders, making advances when necessary and charging the principal with commissions and interest. At the time when this order was received the principal was indebted to the agent for advances, commissions and interest about $4000 more than the value of the securities in his hands. The broker did not execute the order, did not notify the principal by telegraph that he declined to do so, and made no demand for further advances; but notified him of his refusal by a letter written on the day when the order was received, but received by the principal VOL. CXXLx-13 two days later. The securities which had been ordered sold depreciated below the prices at which they could have been sold on that day, and those which had been ordered bought advanced, so that they could have been sold at a large profit. The broker sued the principal for advances on an open account current and interest and commissions. The principal set up as a counterclaim the losses from these sources Held, (1) That the broker was bound to follow the directions of his principal or give notice that he declined to continue the agency; (2) That this notice should have been given by telegraph, and that the delay caused by using the mail alone was inexcusable under the circumstances, (3) That in the absence of a special agreement to the contrary, it was the principal's judgment, and not the broker's, that was to control, (4) That the broker was liable for all the damages which the principal sustained by* the refusal to change the stock, both on the stocks ordered sold, and those ordered purchased. The measure of damages in stock transactions between a stock-broker and his principal, in which the principal suffers from the neglect of the broker to execute orders, either for the sale of stock which he holds for the principal, or for the purchase of stock which the principal orders, is- not the highest intermediate value up to the time of trial- but the highest intermediate value between the time of the conversion and a reasonable time after the owner has received notice of it. in this respect disregarding the rule adopted in England and in several of the States in this country and following the more recent rulings in the Court of Appeals of the State of New York.	This is a suit brought by Jones, a stock-broker, against his customer for the balance of account alleged to be due to the plaintiff arising out of advances of money, and purchases and sales made, and commissions. The complaint or declaration states 'that between the 15th day of January, 1877, and 15th day of January, 1879, the plaintiff, as a stock-broker, at the special instance and request of the defendant, paid and advanced on an open account current, to and for the use of the defendant, divers sums of money, and also earned at the defendant's request, and became entitled to, divers commissions as a broker, for all of which monthly accounts were rendered, and balances struck, and, by agreement, interest charged monthly on balances; and that on the 1st day of March, 1879, there was due and unpaid from defendant to plaintiff the sum of $6,232.30, no part of which has been paid.' Judgment is demanded for this sum, with interest and costs. Gallagher, the defendant below, in his answer, affer denying any indebtedness to the plaintiff, states that the plaintiff is a banker at Salt Lake City, and that the defendant has had for two years past an account with him as such, and that 'the plaintiff, at the defendant's request, and as his agent, boughtor caused to be bought at the Mining Stock Exchange Board, in San Francisco, Cal., certain mining stocks for and on account of this defendant, and at various times thereafter in the years 1877 and 1878, on the order and at the direction of this defendant, and as his agent aforesaid, bought and sold mining and other stocks up to about the date of the complaint; that at divers times during and between the dates above specified this defendant paid into said plaintiff's bank sums of money on account of said purchases, and to the credit thereof, and which was so applied by plaintiff on defendant's order. And defendant denies that at the date of the complaint the sum of five thousand dollars, or any sum, was due the plaintiff on said account, or on any account, for loans or advances from plaintiff to defendant. Defendant further alleges that it was distinctly agreed between the plaintiff and this defendant in the business that said purchases of stock by the plaintiff were made on defendant's credit, and that said stocks were bought and were to be held subject to defendant's order at all times, this defendant agreeing to pay said plaintiff commissions for his services as agent, and an agreed rate of interest on any advances he might make, and at no time had the plaintiff any authority to either buy or sell stocks on defendant's account, except by his order.' The defendant then set up the following counter-claims, to-wit: (1) That on the 13th day of November, 1878, being at Virginia City, he ordered the plaintiff, (at Salt Lake City,) by telegraphic dispatch, to sell certain mining stocks then in his hands as defendant's agent, to-wit: 320 shares of 'Justice' stock, worth $9 per share; 50 shares of 'Alta' stock, worth $8 per share; 200 shares of 'Tip Top' stcok, worth $1.60 per share; and to invest the proceeds in 'North Bonanza' stock,—another mining stock on the same board, which the defendant had been investigating. That the plaintiff received this dispatch in ample time to make the transaction, as directed, on that day, but refused and neglected to do so; and that the defedant relied on its being done, and agreed with another party to sell the stock he had ordered purchased. That the plaintiff did not give notice to the defendant of his refusal to comply with said order until several days afterwards, and then by letter. That afterwards, and without any orders so to do, the plaintiff sold the 'Alta' stock at $7.75 per share; the 'Justice' at $4.40 per share; and the 'Tip Top' at $1.25 per share; making a net loss to defendant of $1,200; and that the 'North Bonanza' stock was not worth more than $2 per share on that day, and within five days thereafter it advanced to $5.60 per share, which the defendant would have realized if the plaintiff had complied with his order,—whereby the defendant lost the sum of $6,125. (2) The defendant further alleged that in the same month of November, 1878, the plaintiff, as defendant's agent, held for him 600 shares of mining stock known as 'Challenge' stock; and without his consent, on the 27th and 29th of said November, sold the same for his (the plaintiff's) own use, to the damage of the defendant of $2,850. (3) That on the 22d day of November, 1877, the plaintiff held for the defendant, as his agent, as aforesaid, 50 shares of mining stock known as 'Ophir' stock, worth at that date $37.50 per share, and on that day pretended to defendant that he had sold said stock for defendant, and so reported to him, when in fact he had not sold said stock, but continued to hold the same, and afterwards sold it for $100 per share, the advance amounting to $3,125, which is justly due from the plaintiff to the defendant. The case being at issue, was tried by a jury, and resulted in a verdict of $5,412.50 for the defendant. This verdict was set aside, (1 Pac. Rep. 15,) and a new trial awarded, and the case was next tried by a referee appointed by the court. He duly reported his findings of fact and law, upon which the court gave judgment for the plaintiff for the sum of $7,028. The substance of the findings of fact was: That the plaintiff was a banker in Salt Lake City; that during the years 1878 and 1879 he bought and sold mining stocks for the defendant upon defendant's order and request, and made the advances necessary for the purchases, and was to receive commissions on the purchases and sales, and interest on the advances, and to hold the stocks purcahsed for defendant in his own name as collateral security for any balance due to him. With regard to the first defense set up by the defendant the referee found that on the 13th of November, 1878, the plaintiff held of stocks purchased for defendant, among others, 320 shares of 'Justice,' then worth $9 per share; 50 of 'Alta,' worth $18 per share; and 200 of 'Tip Top,' worth $1.60 per share; and that on that day the defendant, being at Virginia City, ordered plaintiff by telegram to turn his said stocks, without limit, into 'North Bonanza' at limit of $2.75. That the plaintiff received said telegram at Salt Lake City on the same day in time to have sold the stocks ordered sold, and to have purcahsed the North Bonanza, which was then selling for $2 and $2.50 per share. That the plaintiff failed and refused to obey the directions given in the telegram, and failed to notify the defendant of his refusal until the 15th of November, when he notified him by letter written on the 13th, and received by defendant on the 15th. That within a few davs the price of North Bonanza advanced to $5 and $5.50 per share, having reached $3.50 on the 16th of November, and before the 23d receded to a point below what it was on the 13th. The defendant, at the time of sending his telegram to the plaintiff, was owing him more than $4,000 for advances, commissions, and interest, over and above the market value of the stocks then held by him for the defendant. As a conclusion of law, and under the decision of the supreme court of the territory, given upon setting aside the verdict rendered on the first trial, the referee disallowed this counterclaim, holding, in conformity with the view of the court, that the plaintiff was not bound to comply with the defendant's directions about the stock, and not bound to give him any prompter notice than he did give. The court, in its opinion, as quoted by the referee in his report, had said: 'Was the plaintiff under obligation to sell the stock and invest the proceeds of such sale as directed by the defendant? * * * This order, in effect, directed the plaintiff to dispose of certain securities held by him, and to take another in place of them. I do not find, in the examination of the record and testimony, any contract or understanding between the parties requiring the plaintiff to do it. The order to sell and reinvest being one, the plaintiff was not obliged to comply with it. The difference between the values of the stocks at the time the order was made and at the time they were afterwards sold is immaterial in this action. The right of the plaintiff to sell at the time of sale, and the good faith and sound discretion in which it was made, are not in issue. I am therefore of the opinion that the verdict allowing damages for the failure of plaintiff to sell the Justice, Alta, and Tip Top mining stocks, as directed by the defendant on November 13, 1878, is not supported by evidence rightly before the jury, and that there was error in admitting evidence as to the value of the stock of the North Bonanza in support of the item of counter-claim, based upon the failure of the plaintiff to comply with the order to purchase.' 1 Pac. Rep. 15. In this, we think, the court was in error. A broker is but an agent, and is bound to follow the directions of his principal, or give notice that he declines to continue the agency. In the absence of a special agreement to the contrary, it is the principal's judgment, and not his, that is to control in the purchase and sale of stocks. The latter did not sak for any further advances by the order in question; he only directed a conversion or change of one stock into another. The plaintiff should have given prompt notice that he objected, and declined to make the change. Telegraphic communication was used by the defendant, and no reason appears why the plaintiff could not have used the same. The delay caused by using the mail alone was inexcusable under the circumstances. The plaintiff charged ample compensation for his services, and was bound to act faithfully, fairly, and promptly. We think that he was liable for all the damages which the defendant sustained by his refusal to change the stocks, both for the loss on the sales of the 'Justice,' 'Alta,' and 'Tip Top,' and the loss occasioned by not purchasing the 'North Bonanza.' The report of the referee, being made in conformity with the decision of the supreme court, does not show sufficient facts to determine the amount of loss in these respects. If the answer states the facts truly, the loss on the failure to sell the old stocks was over $2,000; and it appears from the report that the North Bonanza could have been purchased at $2 to $2.50 per share on the 13th of November, and sold for $5 to $5.50 within a few days,—showing a loss of $3 per share; and as the proceeds of the other stocks, if they had been sold as directed, would have been sufficient to purchase 1,600 to 2,000 shares of North Bonanza, the loss on this account must have been more than $5,000. But the want of a sufficient finding of facts necessitates a new trial. As to the second item of counter-claim set up in the answer, namely, the alleged wrongful sale by the plaintiff of 600 shares of 'Challenge' stock, the referee found that the plaintiff held such stock for the defendant, and on the 27th and 29th of November, 1878, of his own motion, and without notice to the defendant, sold it for $1.25 per share; that in December the stock sold as high as $2 per share; in January the highest price was $3.10; in February the highest price was $5.50. The referee allowed the defendant the highest price in January, namely, $3.10 per share, being an advance of $1.85 above what the plaintiff sold the stock for, which, for the whole 600 shares, amounted to $1,110. The reason assigned by the referee for not allowing the defendant the highest price in February, (namely, $5.50 per share,) was that before that time the defendant had reasonable time, after receiving notice of the sale of his stock by the plaintiff, to replace it by the purchase of new stock, if he desired so to do; and he allowed him the highest price which the stock reached within that reasonable time. In this conclusion we think the referee was correct, and as to this item we see no error in the result. With resepct to the third counter-calim set up in the answer, the referee found that the plaintiff did sell the 50 shares of 'Ophir' stock mentioned therein on the 22d day of November, 1877, as reported by him to the defendant. Consequently the referree correctly found that the defendant was not entitled to any damages on that account, as no dissatisfaction with the sale was expressed by the defendant at the time. We see no error in this conclusion. It has been assumed, in the consideration of the case, that the measure of damages in stock transactions of this kind is the highest intermediate value reached by the stock between the time of the wrongful act complained of and a reasonable time thereafter, to be allowed to the party injured to place himself in the position he would have been in had not his rights been violated. This rule is most frequently exemplified in the wrongful conversion by one person of stocks belonging to another. To allow merely their value at the time of conversion would, in most cases, afford a very inadequate remedy, and, in the case of a broker, holding the stocks of his principal, it would afford no remedy at all. The effect would be to give to the broker the control of the stock, subject only to nominal damages. The real injury sustained by the principal consists not merely in the assumption of control over the stock, but in the sale of it at an unfavorable time, and for an unfavorable price. Other goods wrongfully converted are generally supposed to have a fixed market value at which they can be replaced at any time; and hence, with regard to them, the ordinary measure of damages is their value at the time of conversion, or, in case of sale and purchase, at the time fixed for their delivery. But the application of this rule to stocks would, as before said, be very inadequate and unjust. The rule of highest intermediate value, as applied to stock transactions, has been adopted in England, and in several of the states in this country; while in some others it has not obtained. The form and extent of the rule have been the subject of much discussion and conflict of opinion. The cases will be found collected in 2 Sedg. Dam. (7th Ed.) [479,] p. 379, note b; Mayne, Dam. 83, (92 Law Lib.;) 1 Smith, Lead. Cas. (7th Amer. Ed.) 367. The English cases usually referred to are Cud v. Rutter, 1 P. Wms. 572, (4th Ed.) note 3; Owen v. Routh, 14 C. B. 327; Loder v. Kekul e, 3 C. B. (N. S.) 128; France v. Gaudet, L. R. 6 Q. B. 199. It is laid down in these cases that, where there has been a loan of stock and a breach of the agreement to replace it, the measure of damages will be the value of the stock at its highest price on or before the day of trial. The same rule was approved by the supreme court of Pennsylvania in Bank v. Reese, 26 Pa. St. 143, and Musgrave v. Beckendorff, 53 Pa. St. 310. But it has been restricted in that state to cases in which a trust relation exists between the parties,—a relation which would probably be deemed to exist between a stock-broker and his client. See Wilson v. Whitaker, 49 Pa. St. 114; Railroad Co. v. English, 86 Pa. St. 247. Perhaps more transactions of this kind arise in the state of New York than in all other parts of the country. The rule of highest intermediate value up to the time of trial formerly prevailed in that state, and may be found laid down in Romaine v. Van Allen, 26 N. Y. 309, and Markham v. Jaudon, 41 N. Y. 235, and other cases, although the rigid application of the rule was deprecated by the New York superior court in an able opinion by Judge DUER, in Suydam v. Jenkins, 3 Sandf. 614. The hardship which arose from estimating the damages by the highest price up to the time of trial, which might be years after the transaction occurred, was often so great that the court of appeals of New Yrok was constrained to introduce a material modification in the form of the rule, and to hold the true and just measure of damages in these cases to be the highest intermediate value of the stock between the time of its conversion and a reasonable time after the owner has received notice of it to enable him to replace the stock. This modification of the rule was very ably enforced in an opinion of the court of appeals delivered by Judge RAPALLO in the case of Baker v. Drake, 53 N. Y. 211, which was subsequently followed in the same case in 66 N. Y. 518; and in Gruman v. Smith, 81 N. Y. 25; Colt v. Owens, 90 N. Y. 368; and Wright v. Bank, 110 N. Y. 237, 18 N. E. Rep. 79. It would be a herculean task to review all the various and conflicting opinions that have been delivered on this subject. On the whole, it seems to us that the New York rule, as finally settled by the court of appeals, has the most reasons in its favor, and we adopt it as a correct view of the law. The judgment is reversed, and the cause remanded to the supreme court of Utah, with instructions to enter judgment in conformity with this opinion.
129.US.206	An order of a Circuit Court of the United States, in a suit in equity for the foreclosure of a mortgage upon the property of a railroad company that the receiver of the mortgaged property may borrow money and issue certificates therefor to be a first lien upon it, made after final decree of foreclosure, and after appeal therefrom to this court, and after the filing of a supersedeas bond, establishes, if unreversed, the right of the holders of the certificates to priorit3 of payment over the mortgage bondholders, and is a final decree from which an appeal may be taken to this court.	The reasons why the judges declined to allow this appeal may be substantially divided into two. The first and most important of these is that the order from which the appeal is asked is not a final decree, within the meaning of the act of congress on that subject, but is a mere ancillary proceeding for the protection of the property pending an appeal from the principal decree now before this court. But the doctrine that, after a decree which disposes of a principal subject of litigation and settles the rights of the parties in regard to that matter, there may subsequently arise important matters requiring the judicial action of the court in relation to the same property, and some of the same rights litigated in the main suit, making necessary substantive and important orders and decrees in which the most material rights of the parties may be passed upon by the court, and which, when they partake of the nature of final decisions of those rights, may be appealed from, is well established by the decisions of this court. Blossom v. Railroad Co., 1 Wall. 655: Forgay v. Conrad, 6 How. 201; Fosdick v. Schall, 99 U. S. 235; Williams v. Morgan, 111 U. S. 684, 4 Sup. Ct. Rep. 638; Burnham v. Bowen, 111 U. S. 776, 4 Sup. Ct. Rep. 675. The question in such cases is not whether the order complained of is of a character decisive of questions that the parties are entitled to have reviewed in the appellate court, but whether the order or decree is of that final nature which alone can be brought to this court on appeal. It is upon this ground mainly that the right of appeal is resisted in the present case; but we are of opinion that, within the true principles which establish the finality of a decree of the circuit court in reference to the allowance of an appeal, this order is a final decree. If the order is executed, the first thing to be done under it will be to borrow money to the extent authorized therein, and then the receivers will issue the certificates contemplated in it. It is not necessary to hold here what the position of the holders of such certificates would be, if the order contained no provision that they should be the first lien upon the property of the company. It might be, but it is not necessary to decide that question here, that such an order would not be conclusive of the right of the holders of such certificates to priority of payment out of the proceeds of the sale of the railway. It is one of the arguments used before us, that upon a final sale, and an order by the court for the distribution of its proceeds, such certificates would not necessarily be held to have such priority; but that, issued under this order, and containing on their face the provision authorized by it, they would constitute a first lien upon the property of the railway company to be sold under the final decree, is, we think, very clear. Such order standing unrepealed, we do not think that the court in a subsequent stage of the same litigation, in the same case, and in regard to the same subject-matter, could be permitted to say that the holders of these certificates must establish their right to priority of payment; but we are of opinion that such holders, under the decree of this court that they should have priority standing unreversed, would be entitled to such first lien. These views we do not propose to elaborate, further than to say that if this order does not give the lender of the money such prior lien upon the proceeds of the property of the company, it is because the court had no authority to make it, and, as it would be a fraud upon such lender, justice could only be done by enforcing it. If this view of the subject be correct, of which we entertain no doubt, the order is a final one. It is a decree fixing upon the property, on which the trust company now has a first lien, another lien of $120,000, and making it paramount to that. It changes the relation of that company to this property, displaces its rights as settled by a decree now pending in this court, and if that decree is affirmed it in effect modifies it, although this court may say that it should stand and be enforced. This order comes within all the elements of finality which we can imagine to belong to a decree of the circuit court. It establishes certain rights of the parties, to the injury, as petitioners believe, of their interests in the property. We need not refer to cases on the subject of finality, for they are numerous, and the principles on which they have been decided apply to widely varying circumstances. But while we are not aware of any case precisely in point to the one before us, we are satisfied that it is within the purpose of the statute and the principles by which it is to be construed. The other reason given why the appeal should not be granted is that the action of the circuit court in the case is one within its discretion. All we have to say upon this subject is that, if it be an authority vested in the judges of the circuit court, it must be exercised and governed by the principles of a judicial discretion, and the very point to be decided upon an appeal here is whether they had such discretion, and whether they exercised it in a manner that cannot be reviewed in this court. The question is one which in its nature must be a subject of appeal. Whether the court below can exercise any such power at all, after the case has been removed from its jurisdiction into this court by an appeal accompanied by a supersedeas, is itself a proper matter of review; and still more whether, in the exercise of what the court asserts to be its discretionary power, it has invaded established rights of the petitioners in this case, contrary to law, in such a manner that they can have no relief except by an appeal to this court. This is a matter eminently proper to be inquired into upon an appeal from such an order. Upon the hearing of that appeal this court may be of opinion that the order was one proper to be made, in which case it will be affirmed. If, however, it believes that it was an improper one, and will seriously prejudice the rights of the petitioners, it will be reversed and set aside, as it should be. In granting the appeal, this court, of course, does not undertake to decide whether the order was rightfully made, if the court had the requisite power, but can only do that upon the hearing of the appeal. For the same reasons this court cannot consider, on this motion, the urgent appeals made to it in regard to the necessity of this order for the preservation of the railway from destruction during the pendency of the appeal on the main case. That is a matter only fit to be considered on the hearing of the appeal, which we think should be granted. The writ of mandamus, directing the judges of the circuit court to allow the appeal and to approve a sufficient bond, is granted.
129.US.470	The act approved March 2, 1867, c. 208, 14 Stat. 635, confirmed to the widow and children of one Bouligny the one sixth part, amounting to 75,840 acres, of a certain land claim in Louisiana, and enacted that, inasmuch as the land embraced in the claim had been appropriated by the United States to other purposes, certificates of new location, in eighty-acre lots, be issued to the widow in lieu of said lands, to be located on public lands. The next Congress, twenty-eight days afterwards, and on March 30, 1867 passed a joint resolution, which was approved by the President, directing the Secretary of the Interior to suspend the execution of the act, " until the further order of Congress." No action had meantime been taken by the General Land Office to carry out the act. On a petition by the widow for a mandamus to the Commissioner of the General Land Office directing him to execute and deliver to her the certificates. Held, (1) The execution of the act was suspended not merely until the further order of the same Congress which passed the joint resolution, but until the further order of the legislative body called, m Section 1, of Article 1, of the Constitution, "a Congress of the United States", (2) The act did not vest in the beneficiaries a title to specific land, nor give them a vested right in the certificates which were to be issued, (3) No vested right, amounting to property, had attached at the time of the approval of the joint resolution, and it did not deprive the beneficiaries of any property, or right of property, m violation of the Constitution, (4) If the claim, founded on the act, amounted to a contract, the demand for relief would be substantiallv a prayer for a specific performance of the contract by the United States, jurisdiction to grant which was not given by statute to the court below.	This is a writ of error to review a judgment of the supreme court of the District of Columbia, in general term. The writ is brought by the United States, on the relation of Mary Elizabeth Levey, intermarried with George Collins Levey, against Strother M. Stockslager, commissioner of the general land-office. Mary Elizabeth Levey filed a petition in the supreme court of the District of Columbia, praying for a writ of mandamus. The petition set forth that the petitioner was formerly Mary Elizabeth Bouligny, the widow of John E. Bouligny, deceased, and the person named in the act of congress of March 2, 1867, hereinafter set forth; and that she is now the wife of George Collins Levey, and was such on the 29th of March, 1888. The act of congress referred to (chapter 208, 14 St. 635) was set forth in the petition, and is in these words: 'An act for the relief of the heirs of John E. Bouligny. Be it enacted by the senate and house of representatives of the United States of America, in congress assembled, that there be, and hereby is, confirmed to Mary Elizabeth Bouligny, Corrinne Bouligny, and Felice Bouligny, widow and children of John E. Bouligny, deceased, the one-sixth part of the land claim of Jean Antoine Bernard D'Autrive, in the state of Louisiana, said one-sixth part amounting to seventy-five thousand eight hundred and forty acres; and that, inasmuch as the said land embraced in said claim have [has] been already appropriated by the United States to other purposes, certificates of new location, in eighty-acre lots, be issued to the said Mary Elizabeth Bouligny, for her own benefit and that of her said minor children, in lien of said lands, to be located at any land-office in the United States, upon any public lands subject to private entry at a price not exceeding one dollar and twenty-five cents per acre. The commissioner of the general land-office is hereby directed to issue said certificates of new location, in accordance with existing regulations in such cases. Approved March 2, 1867.' The petition set forth that on the 6th of March, 1867, the petitioner's attorney filed with the commissioner of the general land-office a certified copy of said act, and requested that the certificates of new location named in the act be issued. That the act was passed by the thirty-ninth congress, which adjourned on the 3d of March, 1867. That at the next session of congress, being the fortieth congress, the latter congress, on the 30th of March, 1867, passed the following joint resolution, (No. 35, 15 St. 353:) 'Joint resolution directing the secretary of the interior to suspend the execution of a law passed by the thirty-ninth congress for the relief of the heirs of John E. Bouligny. Be it resolved by the senate and house of representatives of the United States of America, in congress assembled, that the secretary of the interior be directed to suspend the execution of the act entitled 'An act for the relief of the heirs of John E. Bouligny, approved March second, eighteen hundred and sixty-seven, until the further order of congress. Approved March 30, 1867.' That congress had made no 'further order' in the matter. That the defendant was, on the 29th of March, 1888, and since had been, and now is, commissioner of the general land-office of the United States. That the petitioner, on that day, demanded of him, as such commissioner, that he issue to her, for her own benefit and that of her minor children named in the act, certificates of new location for 75,840 acres, in 80-acre lots, locatable at any land-office in the United States, upon any public lands subject to private entry, at a price not exceeding $1.25 per acre. That such demand was made in writing, at the office of the said commissioner, in Washington. That he, on the 12th of April, 1888, refused to grant that request. That on the 13th of April, 1888, she duly appealed from the decision and refusal of the commissioner to the secretary of the interior. That the said secretary, on the 3d of May, 1888, approved the decision of the commissioner; and that she had theretofore repeatedly made application to the commissioners of the general land-office to issue said certificates of new location, and always met with a refusal to issue them. The petition prayed that a writ of mandamus might issue to the said commissioner, directing him to execute and deliver such certificates to her. On an order to show cause, returnable in the general term of the court, the respondent put in an answer, setting forth that no action had been taken by the general land-office, for the purpose of carrying out and giving effect to the provisions of the act of March 2, 1867, prior to the passage of the joint resolution of March 30, 1867; that, by the passage of such joint resolution, the power of the respondent to issue the certificates was suspended until the further order of congress; that congress had made no further order; that the act of March 2, 1867, did not give to the relator or to the heirs of Jonh E. Bouligny a vested right to the certificates; that, as the act of March 2, 1867, directed the commissioner to issue the certificates 'in accordance with existing regulations in such cases,' it would have imposed upon the respondent the exercise of an official duty, within his discretion, and not reviewable by the court; that such official duty is not a ministerial duty; that, if the relator had acquired a vested right to the certificates under the act, a remedy was afforded in the court of claims, under section 1059, to recover their value, provided the petition setting forth the claim had been presented to the court within six years after the claim first accrued; and that the petition ought to be dismissed. The relator put in a demurrer to the answer, on the ground that it did not set up any legal defense; that the remedy in the court of claims, suggested by the answer, did not exist in law; that the right in the certificates, given by the act of congress, was a vested right, which could not be and was not taken away by the joint resolution; and that the joint resolution was unconstitutional and void. The court, in general term, overruled the demurrer, and, the relator electing to stand upon it, a judgment was entered, discharging the rule to show cause, and dismissing the petition. An opinion was delivered by the court in general term. It held that the act of March 2, 1867, was not a grant, and nothing passed by it; that the Louisiana lands named in it were never possessed by the confirmees, and were not to be possessed by them; that under such circumstances there could be no confirmation in regard to them; that the provision for certificates in lieu of them was not a grant, and nothing passed by it, because it was wholly executory; that, the certificates never having been prepared or come into existence, the effect of the joint resolution could, at most, only be to impair the obligation of a contract, and was not the taking of private property; that the contract supposed to exist by virtue of the act of March 2, 1867, could not be enforced, either by the executive or the courts, until the United States should grant permission for such enforcement, nor after such permission had been withdrawn; that the power to perform the contract, and the right to insist upon its performance, existed only while such permission existed; that the relief sought by the relator amounted to a specific performance of the alleged contract of the United States, by one of its officers; that this could not be enforced when the United States had withdrawn its consent; that a writ of mandamus to compel the performance of an official act by a public officer could not be employed to enforce the specific performance by the United States of a contract; and that the respondent had no official duty or power in the premises since the passage of the joint resolution. The principal question argued at the bar was as to the effect of the joint resolution in suspending the execution of the prior act. There is nothing in the suggestion of the relator that the joint resolution intended only a suspension of the execution of the act during the existence of the fortieth congress, and until that congress should further order. We do not think that such is the proper construction of the joint resolution. It suspends the execution of the act 'until the further order of congress,' that is, until the further order of the legislative body called, in section 1, act. 1, of the constitution, 'a congress of the United States,' consisting of a senate and house of representatives, in which are declared to be vested all legislative powers granted by the constitution. The joint resolution was one of the character mentioned in section 7, art. 1, of the constitution, to which the concurrence of the senate and house of representatives was necessary, and which was approved by the President, and took effect only on such approval. It had all the characteristics and effects of the act of March 2, 1867, which became a law by the approval of the President. Until congress should further order, the operation of the act of March 2, 1867, was by the joint resolution effectually suspended. The present case is not at all like the cases of which Morrow v. Whitney, 95 U. S. 551, 112 U. S. 693, and 5 Sup. Ct. Rep. 333, is a type. The statute involved in that case was the act of February 21, 1823, (chapter 10, 3 St. 724,) in reference to land claims in the territory of Michigan. The third section of that act directed that patents should be issued to persons whose claims to land had been regularly filed with the commissioners appointed under the act of May 11, 1820, (chapter 85, 3 St. 572,) and whose claims had been favorably reported on by said commissioners, and the statute confirmed such persons in their claims. That was a statute confirming to persons claims to specific lands, and the patents were to issue for those very lands. The principle established by the decisions of this court in regard to such cases is one always to be adhered to. We do not depart from it in the present case, but only hold that it is not applicable here. The principle thus applied in Morrow v. Whitney, supra, is that an act of congress recognizing the validity of the claim of an individual to specific land, as against the United States, operates to transfer to him the interest of the United States, as effectually as a grant could have done; and, where such individual has the possession of the land, or some estate in it, and the United States still hold the legal title to it, the confirmation is substantially a conveyance of an estate or right in the land by the United States to such individual; and, where the land has boundaries which are clearly defined, or are capable of identification, such confirmation perfects the claimant's title to the very land, without the issuing of any patent therefor. But this doctrine necessarily applies only to a case where the United States intend, by the statute, to transfer to, and vest in, the beneficiary, a title to specific land. The present is not such a case. What is stated by the act of March 2, 1867, to be confirmed is 'the one-sixth part of the land claim' mentioned, said one-sixth amounting to 75,840 acres, but the statute states that the land embraced in the claim has 'been already appropriated by the United States to other purposes.' Therefore the beneficiaries could acquire no title to it from the United States. The act then proceeds to provide for the issuing of certificates of new location, not covering any part of the 75,840 acres which had been already appropriated by the United States to other purposes, nor covering any specific public lands. The new lands were to be 'in lieu' of the lands lost, and were to be selected and located at some land-office, and upon public lands which were subject to private entry, and were so subject at a price not exceeding $1.25 per acre; and the certificates were to be issued by the commissioner of the general land-office 'in accordance with existing regulations in such cases.' Nor did the act of March 2, 1867, give to the widow and children of Bouligny a vested right in the certificates of new location which were to be issued. No certificates were prepared for issue; no step was taken by the commissioner of the general land-office towards issuing them; no new lands were selected or located; and the whole thing remained in fieri, and subject to the control of congress. The cases, cited by the counsel for the relator, of Fletcher v. Peck, 6 Cranch, 87, Dartmouth College v. Woodward, 4 Wheat. 518, McGee v. Mathis, 4 Wall. 143, and U. S. v. Schurz, 102 U. S. 378, do not apply to the present case. There was here no contract between the United States and the widow and children of Bouligny, in the sense of the cases referred to. In Fletcher v. Peck a tract of land had been sold by the governor of Georgia, under the authority of an act of the legislature, to persons who had conveyed it to purchasers for a valuable consideration without notice. It was held that a subsequent legislature could not afterwards repeal the act on the ground that it had been passed through bribery. In Dartmouth College v. Woodward, it was held that a charter granted to a private corporation was a contract. In McGee v. Mathis it was held that a direct grant of land by the United States to a state was a contract; and in that case the scrip had been issued by the state, and was in the hands of the person entitled to receive it, and for that reason it was held that it represented land, and that the act under which it had been issued could not be repealed by the state. In U. S. v. Schurz a patent for land had been signed, sealed, perfected, and recorded, and the power of the land department over it had ceased, so that a writ of mandamus to the secretary of the interior, to deliver it to the person in whose favor it had been made out, would lie. It is also contended for the relator that she acquired, under the act of March 2, 1867, a right which amounted to property, and of which she could not be deprived by the United States under the joint resolution, because that was not due process of law. But we are of opinion that the cases cited on that subject by the relator are not applicable. Inasmuch as nothing had been done by the officers of the land department under the act of March 2, 1867, and no certificates had been made out, and the whole matter still remained executory, no vested right had attached at the time of the approval of the joint resolution. Therefore that resolution did not deprive the widow and children of any property, or right of property, in violation of the constitution. The transaction was merely the ordinary one of a direction by statute to a public officer to perform a certain duty, and a subsequent direction to him by statute, before he had performed that duty, or had entered upon its performance, not to perform it. Williams v. Commissioners, 35 Me. 345; Butler v. Palmer, 1 Hill, 324; Hampton v. Com., 19 Pa. St. 329; Sedg. St. & Const. Law, (Pom. notes, 2d Ed.) 112. But if the contention of the relator, that the provisions of the act of March 2, 1867, amounted to a contract between the United States and the widow and children, were correct, that very fact would show that the relief here sought could not be granted to the relator. She prays for a writ a mandamus against the commissioner of the general land-office, to issue and deliver to her the certificates of new location; but, in case her claim were in fact founded on contract, her demand for relief would substantially amount to a prayer that the United States be decreed specifically to perform the contract. No jurisdiction is given by any statute to the supreme court of the District of Columbia of a suit against the United States or a public officer for the specific performance of a contract made by the United States. On the whole case, we are of opinion that the judgment of the court below, in general term, must be affirmed.
129.US.252	When a life insurance company becomes insolvent and goes into liquidation, the amount due on an endowment policy payable in any event at a fixed time, and sooner if the party dies before that time, should, in settling the company's affairs, be set off against the amount due on a mortgage debt from the holder of the policy to the company by way of compensation or reconvention. When a life insurance company becomes insolvent before the time fixed for the termination of an endowment policy payable to the holder in case of survival until that time, or to his children in case of his death before it, the contingent interest of each party is fixed by the insolvency to be determined by the tables ordinarily used for that purpose. Where a holder of a life policy borrows money of his insurer, it will be presumed prima facte, that he does so on the faith of the insurance and in expectation of possibly meeting his own obligation to the company by that of the company to him. Newcomb v Almy, 96 N. Y. 308, disapproved. BILL i EQUITY to foreclose a mortgage. The case is stated in the opimon.	This case arises out of a granted by the Life Association of America, a corporation of the state of Missouri, to William E. Hamilton, the appellee, of Shreveport, La., upon the life of said Hamilton; and also out of a mortgage given by said Hamilton to the said association for a loan of money; and the main question is whether the amount due on the policy ought to be set off by way of compensation or reconvention against the amount due on the mortgage. The policy was not an ordinary one, payable only at the termination of the life insured, but was what is sometimes called an 'endowment policy,' payable at a certain time at all events, or sooner if the party should die sooner; and the premiums were all to be paid within a certain limited time, to-wit, 10 years. By the terms of the policy, in consideration of $877.80, paid by Hamilton, trustee, and of the annual payment of a like amount on the 14th of July, every year, for nine years thereafter, the association assured his life in the amount of $10,000, payable to him or his assigns on the 14th of July, 1884, or, if he should die previously, payable to his children, naming them. By the rules of the association, the insured was only required to pay two-thirds of the annual premium in cash, and had the option of a credit or loan for the other third, paying the interest thereon at 8 per cent. per annum. Hamilton availed himself of this privilege of credit, and made all the cash payments required for the whole 10 years. His premium loan amounted in 1879, when the association failed, to $2,372.90, and the equitable value of his policy at that time was $7,779.95; leaving in his favor the sum of $5,407.05. This is the amount which he contends should be allowed to him by way of compensation or reconvention against his mortgage debt due to the association. The mortgage debt referred to arose as follows: In March, 1870, Hamilton borrowed of the association the sum of $3,850; being, as he contends, entitled to such loan as a policy-holder, and which he would not have made but for his being such policy-holder. To secure the payment of this loan he gave his promissory note for $3,850, dated 11th of March, 1870, and payable 12 months after date, with 8 per cent. interest after maturity; and to secure the note he gave a mortgage of same date on certain lots and buildings in Shreveport, La. The mortgage contained the usual pact de non alienando, and was recorded 11th March, 1870, and reinscribed 28th May, 1881. By an amended charter of the association, approved October 2, 1869, it was authorized by its directors to form separate departments and branches in the different states, with separate organizations of directors and officers, but having a general connection with the parent company; and it was provided that each department should have the management and investment of the funds received therein. Under this charter a separate department was made of Louisiana and Texas, and Shreveport was one of the districts of this department. The loan made by Hamilton, who resided in Shreveport, was made, as he testifies, from the funds raised from the business of the association in that district. The Insurance Association became insolvent in 1879, and on the 13th of October, in that year, proceedings were instituted against it by the superintendent of the insurance department of Missouri, under the laws of that state, for the liquidation of its affairs; and such proceedings were had that on the 10th day of November, 1879, a decree was made by the circuit court of the city of St. Louis, (having jurisdiction of the matter,) declaring that the association was insolvent, and that its condition was such as to render its further proceedings hazardous to the public, and to its policy-holders, and that the association be dissolved, and its officers and agents enjoined from exercising any control over its property or affairs, and from the further continuance of its business of life insurance. The decree further proceeded to vest the title to all the property and assets of the association in the superintendent of the insurance department of the state, to hold and dispose of the same for the use and benefit of the creditors and policy-holders of the institution; and its officers were directed to convey, assign, and transfer all its property and assets to the said superintendent. In short, the association was put into a condition of absolute bankruptcy and liquidation. In June, 1883, the insurance superintendent of Missouri for the time being, finding Hamilton's note and mortgage among the assets of the Life Association, filed a petition for executory process in the circuit court of the United States for the Western district of Louisiana for the seizure and sale of the property covered by the defendant's mortgage before referred to, and afterwards filed a bill of foreclosure against Hamilton, the appellee. The latter, besides an answer, filed a cross-bill, setting up the amount due on the policy of insurance by way of compensation and reconvention. It is conceded that the interest was paid on the mortgage debt up to March, 1879; and there is no question that the equitable value of the policy in November, 1879, was, as before stated, $5,407.05, after deducting all deferred premiums. This was more than enough, by over $1,300, to pay and satisfy the mortgage. The question is whether the appellee is entititled to such compensation or reconvention. Natural justice and equity would seem to dictate that the demands of parties mutually indebted should be set off against each other, and that the balance only should be considered as due. But the common law, for simplicity of procedure, determined otherwise, and held that each claim must be prosecuted separately. 'The natural sense of mankind,' says Lord MANSFIELD, 'was first shocked at this in the case of bankrupts; and it was provided for by 4 Anne, c. 17, § 11, and 5 Geo. II. c. 30, § 28.' Green v. Farmer, 4 Burrows, 2220, cited in 2 Story, Eq. Jur. § 1433. In pursuance of these old statutes, and of the dictates of equity, the principle of set-off between mutual debts and credits has for nearly two centuries past been adopted in the English bankrupt laws, and has always prevailed in our own whenever we have had such a law in force on our statute book; and it mattered not whether the debt was due at the time of bankruptcy or not. See Bab. Set-Off, 118; Ex parte Prescot, 1 Atk. 231; Bac. Abr. tit. 'Bankrupt,' K; Acts Cong. 1800, c. 19, § 42; 1841, c. 9, § 5; 1867, c. 176, § 20; Bump, Bankr. (10th Ed.) 91. It is difficult to see why this principle of justice should not apply to persons holding policies of life insurance in a company which becomes bankrupt and goes into liquidation. By that act the company becomes civiliter mortuus, its business is brought to an absolute end, and the policy-holders become creditors to an amount equal to the equitable value of their respective policies, and entitled to participate pro rata in its assets. If any one is indebted to the company, especially if his debt was contracted with reference to, and because of, his holding a policy, there would seem to be strong reason for allowing him a set-off, and no good reason to the contrary. One objection raised against the allowance of set-off, or compensation, in the present case, is that when the Life Association became insolvent, and when the present suit was commenced, the insurance had not become absolute in Hamilton, and did not become so until July 14, 1884, previous to which time his children had a contingent interest therein, they being the beneficiaries in case he should die before that date. But this reason cannot be sound; for a settlement of the company's affairs cannot be postponed to await the determination of every contingency on which its policy engagements are suspended. This would postpone a settlement for at least half a century. Every person's interest in life insurance is capable of instant and present valuation, almost as certain and determinate as the discount of a note or bill payable in the future. Tables of mortality, and of all values dependent thereon, are adopted by every company, and furnish an assured basis of computation for this purpose. The table used by the Life Association of America is set out in the record, and other tables based upon it are used to facilitate the calculations desired. Another reason urged against allowing a set-off in this case is that the defendant, Hamilton, holds the policy as trustee, and cannot set off his claim as trustee against a debt due in his own right. This argument has no better foundation than the other. Hamilton was only trustee so far as his children were interested; he could not be trustee for himself, and his interest was separate from theirs. The value of each was easy of calculation by any competent actuary. The policy had less than five years to run, and the interest of his children was contingent upon his dying within that time, he being then 51 years of age. Calculated according to the American table of mortality annexed to the charter of the association, and contained in the record, at 5 per cent. compound interest, (the usual rate assumed,) the value of the children's interest was less than 7 per cent. of the total insurance, or less than $700, while the value of Hamilton's interest was more than 70 per cent. of the insurance, or more than $7,000;1 or, first deducting from the whole present value of the policy (which at 5 per cent. per annum for 5 years deferred is $7,836.26) the amount due for deferred premiums, ($2,372.90,) the value of the children's interest was less than $500, and that of Hamilton's nearly $5,000,—a sum sufficient to cancel all his indebtedness to the company, and leave a considerable balance over. The proceedings which took place in the circuit court of St. Louis in the course of liquidating the affairs of the association may be referred to in this connection. In the progress of the case an actuary was appointed by the court to value all the policies of the company then in force. Hamilton presented a petition to the court, claiming that the net value which his policy had on November 10, 1879, (the day the association was declared bankrupt and dissolved,) should be an offset to his note of $3,850, and the interest thereon. The actuary made a report exhibiting the particulars relating to the policy, and concluded as follows: 'The value of the policy on November 10, 1879, the date of the dissolution of the company by order of the court, was, of the whole $10,000, $7,779.95; from which, deducting outstanding note of $2,372.90, left $5,407.05 as the net value, and which amount was allowed by the commissioner, and approved by the circuit court.' It does not appear whether the circuit court of St. Louis allowed the set-off or not. But the circuit court of the United States dismissed the original bill in the present case, and granted a perpetual injunction against the sale of the defendant's property under his mortgage, but disallowed his demand of reconvention. The form of the decree was as follows: After stating the titles of the bill and cross-bill, the decree was in the words following, to-wit: 'In the above cases, after trial and due consideration by the court, it is ordered and adjudged by the court that John F. Williams, superintendent, take nothing on his bill of complaint, and said bill is hereby dismissed. And it is further adjudged and ordered that the bill of complaint of W. E. Hamilton be sustained, and the injunction of said Hamilton be, and is hereby, made perpetual. And it is further ordered that the demands in reconvention of the said Hamilton in his bill of complaint be, and are hereby, rejected, without prejudice and of nonsuit.' Also decree for costs. We think that this decree attained the substantial justice of the case. If not absolutely correct, it erred against the defendant, who has not appealed. The counsel for the appellant, however, strenuously contends that compensation could not properly be allowed in this case. In support of his views he refers to the case of Newcomb v. Almy, 96 N. Y. 308, decided by the court of appeals of New York. That case was almost parallel with the present one, and the claim of set-off was disallowed. The suit was brought by the receiver of an insolvent life insurance company against the holder of an endowment policy issued by the company, to recover the amount of a promissory note. The defendant, as in this case, sought to set-off the value of his policy against the note. The policy was not yet due, and, in case the defendant died before it became due, the amount was payable to his wife. The court assumed that the interests of the assured and his wife were so involved together that they could not be separated, and that it did not yet appear who would be entitled to the insurance,—not adverting to the fact that the interests of all the parties became fixed by the insolvency of the company, and must be computed as expectancies reduced to present values. It is true, the court does, in the next sentence, concede that the policy had a reserve value, but asks, 'To whom was that value payable?' The plain answer was at hand, that the reserve value of each person's interest was payable to him or her. We cannot but think that, if the true character of the interests in question had been brought to the attention of that learned court, it would have come to a different conclusion from that which was reached. The counsel for the appellant further contends that by the law of Louisiana (which must undoubtedly govern the case) compensation is not allowed against an insolvency in favor of a party whose credit was not due when the insolvency occurred. The Civil Code of Louisiana on the subject of set-off is identical with the Code Napoleon. The article apropos of the point now under consideration is 1291 of the Code Napoleon, and 2209 of the Civil Code of Louisiana, and reads as follows: 'Compensation takes place only between two debts, having equally for their object a sum of money, or a certain quantity of consumable things of one and the same kind, and which are equally liquidated and demandable [exigibles, i. e., due.]' Now, although upon a bankruptcy declared, all claims against the bankrupt become instantly due, (subject, of course, if not matured, to a rebate of interest,) and are equally entitled to dividends of the bankrupt assets, yet, in order that a claim may be the cause of compensation, the commentators hold that it must be due [exigible] at the time when the bankruptcy is declared. 7 Touillier, art. 381; 28 Demolombe, art. 540. There have also been judicial decisions to the same effect, though not uniformly so. See 3 Merl. Report, p. 262, tit. 'Compensation.' But if there are technical reasons in the law of Louisiana for rejecting the defense when set up by way of compensation, it was nevertheless allowed by the supreme court of that state, by way of reconvention, in a case exactly like the present. Association v. Levy, 33 La. Ann. 1203. Levy was the holder of an endowment policy in the same company as Hamilton, and in the same district, (Shreveport.) As in this case, the policy had not matured; but the court held that it might be set up by way of reconvention, and that the amount to which the defendant was entitled could be recovered by him, and deducted from the amount of his indebtedness to the company. This decision was based on a statute of Louisiana, enacted in 1839, as an amendment to article 375 of the Code of Practice. Article 375 was originally in the following form, to-wit: 'In order to entitle the defendant to institute a demand in reconvention, it is requisite that such demand, though different from the main action, be, nevertheless, necessarily connected with, and incidental to, the same; as, for instance, the demand instituted by the possessor in good faith against him who sues in order to evict him, or for the purpose of obtaining the payment of the improvements made on the premises.' The amendment adopted in the act of 1839, and now forming part of the article, provides 'that when the plaintiff resides out of the state, or in the state, but in a different parish from the defendant, said defendant may institute a demand in reconvention against him for any cause, although such demand be not necessarily connected with, or incidental to, the main cause of action.' The court in Association v. Levy say: 'The right of the defendant to set up and urge his demand in reconvention against the plaintiff, a resident of the state of Missouri, is under our law, and the jurisprudence of our state, too plain to require argument;' and reference is made to Spinney v. Hide, 16 La. Ann, 250; Spears' Liquidator v. Spears, 27 La. Ann. 642. The court add: 'The objections urged by plaintiff to the allowance of the reconventional demand, on the ground that it would be a compensation of plaintiff's demand, and that this cannot take place, because plaintiff is insolvent, and defendant cannot compensate his own debt, but is entitled only to such dividend as may be declared after a final settlement, and because the policy-holders of the association are partners, and can only sue for a settlement of the partnership affairs, are fully met, discussed, and overruled by the lower judge, and we think properly.' The court, in its judgment, allowed the cash value of the policy, as reported by the actuary, with interest thereon from the time of the adjudication in bankruptcy, November 10, 1879. In our opinion this was a just judgment, and the present case, being precisely like, is governed by it. It is true the court below disallowed the claim in reconvention, but it decreed a perpetual injunction against the enforcement of the defendant's mortgage, and thereby did substantial justice. The result which the court reached was correct, though it may have been led thereto on an insufficient ground. We are free to say, however, that if the court below went on the ground that the defendant was entitled to the benefit of compensation, we should be disposed to concur with it, notwithstanding the doctrine laid down by the commentators. We are inclined to the view that, where a holder of a life-policy borrows money of his insurer, it will be presumed, prima facie, that he does so on the faith of the insurance, and in expectation of possibly meeting his own obligation to the company by that of the company to him, and that the case is one of mutual credit, and entitled to the privilege of compensation or set-off whenever the mutual liquidation of the demands is judicially decreed on the insolvency of the company. The case of Scammon v. Kimball, 92 U. S. 362, is in concurrence with this view. It was there held that a banker, having insurance in a company which was rendered utterly insolvent by the great Chicago fire of 1871, by which the banker's insured property was consumed with the rest, had a right to set up the amount of his insurance against money of the company in his hands on deposit. The insurance was not a debt due at the time of the insolvency; it became due afterwards, when the banker had performed all the conditions required in such cases. As the defendant took no appeal, the case is so clearly decided rightly, as regards any complaint to be made by the plaintiff against the decree, that we have no difficulty in affirming it.
135.US.662	The decisions Hartman v. Greenhow, 102 U. S. 672; Antoni v. Greenhow, 107 U. S. 769; Virginia Coupon Cases, 114 U. S. 269; Barry v. Edmunds, 116 U. S. 550; Chaffin v. Taylor, 116 U. S.5 67; Royall v. Virginia, 116 U. S. 572; Sands v. Edmunds, 116 U. S. 585; IRoyall v. Virginia, 121 U. S. 102; In re Ayers, In re Scott and In re McCabe, 123 U. S. 443, are reviewed; and, without committing the court to all that has been said, or even all that has been adjudged in those cases, on the subject of the act of the legislature of Virginia of March 30,. 1871, to provide for the funding and payment of the public debt, and the issue of coupon bonds of the State under its provisions, it is now Held, (1)'That the provisions of the act of 1871 constitute a contract between the State of Virginia and the lawful holders of the bonds and coupons issued under and in pursuance of said statute; (2) That the vArious acts of the assembly of Virginia passed for the purpose of restraining the use of said coupons for the payment of taxes and other dues to the State, and imposing impediments and obstructions to that use, and to the proceedings instituted for establishing their genuineness, do in many respects materially impair the obligation of that contract, and cannot be held to be valid or binding in so far as they have that effect; (3) That no proceedings can be instituted by any holder of said bonds or coupons against the Commonwealth of Virginia, either directly by suit against the Commonwealth by name, or indirectly against her executive officers to control them in the exercise of their official functions as agents of the State; (4) That any lawful holder of the tax-receivable coupons of the State issued under the act of 1871 or the subsequent act of 1879, who tenders such coupons in payment of-t axes, debts, dues and demands due from him to the State, and contihues to hold himself ready to tender the same in payment thereof, is entitled to be free from molestation in person or goods on account of such taxes, debts, dues or demands, and may vindicate such right in all lawful modes of redress- by suit to recover his property, by suit against the officer to recover damages for taking it, by injunction to prevent such taking where it would be attended with irremediable injury, or by a defence to a suit brought against him for his taxes or the other claims standing against him; that no conclusion short of this can be legitimately drawn from the series of decisions reviewed by the court without wholly overruling that rendered in the Coupon Cases and disregarding many of the rulings in other cases, which the court would be very reluctant to do;and that to this extent the court feels bound to yield to the authority of its prior decisions whatever may have been the former views of any member of the court. In MeGahey v. Virginid, Bryan v. Virginia and Cooper v. Virginia it is now Ileld, .1)T hat the provision in the act of the General Assembly of Virginia of January 26, 1886, which imposes upon the taxpayer the duty/ of, producing the bond from which the coupons tendered by him in payment of taxes were cut, at the time of offering the coupons in evidence in court, is an unreasonable condition, in many cases impossible to be performed, so onerous and impracticable as not only to affect, but to destroy the value of the instruments in the hands of the holder who had purchased them; and is repugnant to the Constitution of the United States; (2) That the 'provision in the act of that Assembly of January 21, 1886, which prohibits expert testimony in establishing the genuineness of coupons so offered in evidence, is in like manner unconstitutional; (3) That it is questionable whether the act of that assembly of May 8th, 1887, which authorizes and requires a suit to be brought pgalnst the taxpayer who tenders payment of his taxes in coupons, a well as the acts which require their rejection, are not laws impairing the obligation of the contract. In Ellett v. Virginia it is Held; that in tendering coupons in payment of a judgment recovered by the State for taxes and costs of suit the taxpayer is entitled to tender coupons in payment of the costs as well as of the taxes. In Cuthbert v. Virginia it is Held; that the special license required by the act of March 15, 1884, as amended by the act of Mlay 23, 1887, for the right to offer tax-receivable coupons for sale was a material interference with their negotiability, and impaired the contract. In Brown's Case it is Held; that whether the passage of a new statute of limitations, giving a shorter time for the bringing of actions tlhan had existed before, as applied to actions which had accrued, so affected the remedy as to impair the obligations of the contract, within the meaning of the Constitution, cepends upon whether a reasonable time is given for bringing such actions; that no one rule can be laid down for determining, as to all cases alike, whether the time allowed was or was not reasonable; that that fact must depend upon the circumstances in each case; and that under the circumstances of this case, and the peculiar condition of the securities in question, the limitation prescribed by § 415 of the Code of Virginia of 1887. with regard to the obligations of the State is unreasonable and impairs the obligation of the contract. In Hucless v. Childrey it is Held; that the requirement by the laws of Vrginia that the tax for a license to sell, by retail, wine, spirits and other intoxicating liquors shall be paid in lawful money of the United States does not impair the obligation of the contract made by the State with the holders of the coupons of its bonds, that they shall be received in payment of taxes. In Vashon v. Greenhtow it is IHeld, that the st itute of Virginia requiring the school tax to be paid in lawful money of the United States was valid. notwithstanding the provision of the act of 1871, and was not repugnant to the Constitution of the United States.	These cases, like the Virginia Coupon Cases, decided in April, 1885, and reported in 114 U. S. 269, 5 Sup. Ct. Rep. 903, 923, 924, 925, 928, 931, 932, 962, 1020, and like Barry v. Edmunds and other cases argued at the same time, decided in February, 1886, and reported in 116 U. S. 550, etc., 6 Sup. Ct. Rep. 501, arise upon certain tax-receivable coupons attached to bonds of the state of Virginia, issued in reduction and liquidation of the state debt under the acts of March 30, 1871, and March 28, 1879. The present appeals are a continuation of the controversy arising upon said coupons as receivable and tendered in payment of taxes and other state dues. The origin of these bonds and coupons has been fully explained in former cases; but the proper disposition of the cases now to be considered will be greatly facilitated by presenting a connected r esum e of the legislative acts relating to and effecting the said securities, and of the decisions heretofore made in reference to said acts. The state debt of Virginia amounted, prior to the late civil war, to more than $30,000,000. After the war, it became a matter of great importance to arrange this debt in such manner as to bring it within the control and means of the state. West Virginia had recently been separated from the parent state, and had participated in the advantages of the money raised by the issue of the state securities. It was supposed by those who were best qualified to know the facts that at least one-third o th e state resources was lost by this excision of territory, and the legislature of Virginia deemed it nothing more than equitable that the new state should bear one-third of the state debt. A proposition was therefore made to the bondholders of the state to receive two-thirds of the amount due them in new bonds, payable 34 years after date, with coupons, attached thereto, receivable, after becoming due, in payment of taxes and other claims and demands due to the state. This scheme was formulated by the act of March 30, 1871, entitled 'An act to provide for the funding and payment of the public debt,' and was acquiesced in by the public creditors, or the great majority of them, who accepted and received the bonds provided for in the act, which were looked upon as a favorite security, in consequence of the value attached to the coupons as legal-tender instruments in the payment of taxes and public dues. The act, among other things, provided as follows: 'Sec. 2. The owners of any of the bonds, stocks, or interest certificates heretofore issued by this state, which are recognized by its constitution and laws as legal, [except certain specific securities named,] may fund two-thirds of the amount of the same, together with two-thirds of the interest due or to become due thereon to the first day of July, 1871, in six per centum coupon or registered bonds of this state, * * * to become due and payable in thirty-four years after date, but redeemable * * * after ten years, the interest to be payable semi-annually on the first days of January and July in each year. The bonds shall be made payable to order or bearer, and the coupons to bearer, and registered bonds payable to order may be exchanged for bonds payable to bearer, and registered bonds may be exchanged for coupon bonds, or vice versa, at the option of the holder. The coupons shall be payable semi-annually, and be receivable at and after maturity for all taxes, debts, dues, and demands due the state, which shall be expressed on their face. * * ' Provision was made in the third section of the act for the issue of certificates for one-third part of the debt which was not funded in said bonds, the payment of which certificates, it was declared, would be provided for in accordance with such settlement as should thereafter be had between the states of Virginia and West Virginia in regard to the public debt of the state existing at the time of its dismemberment. By the fourth section the treasurer was authorized and directed to cause to be prepared, engraved, or lithograped, registered bonds, and bonds with coupons, and certificates of the character mentioned in the second and third sections, and, when prepared, to commence the issuance of the same. It was further enacted that the bonds and certificates should be signed by the treasurer, and countersigned by the auditor; that the coupons should be signed by the treasurer, or that a fac simile of his signature should be stamped or engraved thereon. The bonds were to be issued in series, and those of each series to be numbered from 1 upwards, as issued; and the coupons, in addition to the number of the bond to which they were attached, were to be numbered from 1 to 67. The surrendered bonds were to be canceled, and deposited in the office of the state treasurer. By section 5, certain assets belonging to the state, when realized or converted into money, were to be paid into the treasury to the credit of a sinking fund created for the purchase and redemption of the bonds issued under the act; and after 1880, inclusive, a tax of 2 cents on $100 of the assessed valuation of all property in the state was to be applied in like manner. The treasurer, the auditor of public accounts, and second auditor were appointed commissioners of the sinking fund. It has always been contended on the part of the bondholders that this statute created a contract between them and the state, firm and inviolable, which the legislature had no constitutional right to violate orimp air; and such was for several years the uniform holding of the supreme court of appeals of Virginia. See Antoni v. Wright, 22 Grat. 833, (November term, 1872;) Wise v. Rogers, 24 Grat. 169; Clarke v. Tyler, 30 Grat. 134. A different view, however, has since been taken by the court of appeals, which now holds that the act of 1871 was unconstitutional from its inception, being repugnant to certain provisions of the contitution of the state adopted in 1869. An elaborate argument to this effect is contained in the opinion of the court rendered in one of the cases now before us. Vashon v. Greenhow, [81 Va. 336,] decided January 14, 1886. In ordinary cases the decision of the highest court of a state with regard to the validity of one of its statutes would be binding upon this court; but, where the question raised is whether a contract has or has not been made, the obligation of which is alleged to have been impaired by legislative action, it is the prerogative of this court, under the constitution of the United States and the act of congress relating to writs of error to the judgments of state courts, to inquire and judge for itself with regard to the making of such contract, whatever may be the views or decisions of the state courts in relation thereto. The decisions of this court, therefore, in reference to the question whether a valid contract was made by the statute in question between the state of Virginia, and the holders of the bonds authorized by said act, are to be considered as binding upon us, although a contrary view may have been taken by the courts of Virginia; and in view of this principle of constitutional law, and of the decisions made by this court, we have no hesitation in saying that the act of 1871 was a valid act, and that it did and does constitute a contract between the state and the holders of the bonds issued under it, and that the holders of the coupons of said bonds, whether still attached thereto or separated therefrom, are entitled, by a solemn engagement of the state, to use them in payment of state taxes and public dues. This was determined in Hartman v. Greenhow, 102 U. S. 672, (decided in January, 1881;) in Antoni v. Greenhow, 107 U. S. 769, 2 Sup. Ct. Rep. 91, (decided in March, 1883;) in the Virginia Coupon Cases, 114 U. S. 269, 5 Sup. Ct. Rep. 903, 923, 924, 925, 928, 931, 932, 962, 1020, (decided in April, 1885;) and in all the cases on the subject that have come before this court for adjudication. This question, therefore, may be considered as foreclosed, and no longer open for consideration. It may be laid down as undoubted law that the lawful owner of any such coupons has the right to tender the same after maturity in absolute payment of all taxes, debts, dues, and demands due from him to the state. The only question of difficulty which can arise in any case is as to the mode of relief which the owner of such coupon is entitled to in case they are refused when properly tendered in making his payment, or as to the cases which may be excepted from the operation of his right; for, almost from the start, the legislature of Virginia has from time to time enacted various laws calculated to embarrass the holders of said coupons in the free use of them for the payment of taxes and other dues. As early as March, 1872, an act was passed 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. This law was under consideration in the case of Antoni v. Wright, 22 Grat. 833, before referred to; and the supreme court of appeals of Virginia decided 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. In Clarke v. Tyler, 30 Grat. 134, (decided in 1878,) it was said that this decsio n in Antoni v. Wright 'must be held to be the settled law of this state.' By an act passed March 25, 1873, it was declared that every officer charged with the collection of taxes should deduct from the matured coupons which might be tendered to him in payment of taxes, or other dues to the state, the tax upon the bonds from which the coupons were cut, which tax was decared to be 50 cents on the $100 market value of said bonds. This law was repeated in the act of 1876, and bore oppressively upon the holders of the coupons, inasmuch as it compelled them to pay the tax due on bonds of which they were not the owners, and of the owners of which they had no knowledge. It was a clear impairment of the obligation of the contract with the holders of the coupons. The validity of this act came before this court for consideration in the case of Hartman v. Greenhow, 102 U. S. 672, and it was held to be unconstitutional. Mr. Justice FIELD, speaking for the court in that case, said: 'We are clear that this act of Virginia of 1876, requiring the tax on her bonds issued under the funding act of March 30, 1871, to be deducted from the coupons originally attached to them, when tendered in payment of taxes or other dues to the state, cannot be applied to coupons separated from the bonds, and held by different owners, without impairing the contract with such bondholders contained in the funding act, and the contract with the bearer of the coupons.' By an act of the legislature of Virginia approved on the 28th of March, 1879, another plan for the settlement of the public debt was promulgated. By the first section it was enacted 'that, to provide for funding the debt of the state, the governor is hereby authorized to create bonds or the state, registered and coupon, dated the 1st day of January, 1879, the principal payable forty years thereafter, bearing interest at the rate of three per cent. per annum for ten years, and at the rate of four per centum per annum for twenty years, and at the rate of five per centum for ten years, payable in the cities of Richmond, New York, or London, as hereinafter provided, on the 1st days of July and January of each year, until the principal is redeemed.' 'The coupons on said bonds shall be receivable at and after maturity for all taxes, debts, dues, and demands due the state, and this shall be expressed on their face. The holder of any registered bond shall be entitled to receive from the treasurer of the state a certificate for any interest thereon due and unpaid, and such certificate shall be receivable, etc. All obligations created under this act shall be forever exempt from all taxation, direct or indirect, by the state or by any county or corporation therein; and this shall be expressed on the face of the bonds.' 'The bonds hereby authorized shall be issued only in exchange for the outstanding debt of the state, as hereinafter provided.' Bonds were issued under this act in conformity with its requirements, and some of the coupons thereon are the subject of controversy in one or more of the suits now before us for consideration. The questions relating to their receivability for taxes and other public dues, and to the validity of subsequent laws passed in derogation or obstruction thereof, are the same as those which arise under like circumstances upon the coupons of the bonds issued under the act of 1871. At the session of the general assembly held in 1882 still another scheme for funding and reducing the state debt was formulated by an act approved February 14th, of that year, which specified the amount of each class of indebtedness supposed to be obligatory upon the state of Virginia in relation to the corresponding obligation of the state of West Virginia, and the rate of percentage at which new bonds were proposed to be issued to the public creditors according to the different classes of the debts. These new bonds were to be dated July 1, 1882, and payable July 1, 1892, with interest at 3 per cent. per annum. The commissioners of the sinking fund were authorized to issue them either as registered or coupon bonds, but no security was proposed for the payment of the bonds or coupons except the pledged faith of the state. This act was called the 'Riddleberger Act,' and was declared to be the final proposition which the state would make to its creditors. Of course, it was not to be expected that those who held bonds issued under the acts of 1871 or 1879, with coupons invested with the quality of legal tender for the payment of taxes and other public dues, would willingly surrender their bonds in exchange for the bonds to be issued under the Riddleberger act; and for the purpose, apparently, of creating motives to induce such bondholders to make the exchange, several ancillary bills were passed at the same session, calculated to discourage and hamper the use of the tax-paying coupons of 1871 and 1879. One of these bills, approved the 14th of January, 1882, (recited in full in Antoni v. Greenhow, 107 U. S. 771-774, 2 Sup. Ct. Rep. 91,) required that whenever any tax-payer should tender to any person whose duty it was to collect or receive taxes, debts, or demands due the commonwealth, any papers purporting to be coupons detached from bonds of the commonwealth issued under the act of 1871, in payment of any such taxes, debts, and demands, the person to whom such papers were tendered should receive the same, giving the party tendering a receipt stating that he had received the same for the purpose of identification and verification, but that he should at the same time require such tax-payer to pay his taxes in coin, legal-tender notes, or national bank bills, and give him a receipt therefor. In case of his refusal to pay, the taxes should be collected as all other delinquent taxes were collected. The act then provided for a proceeding in the county court or hustings court of the city to ascertain whether the coupons tendered were genuine legal coupons receivable for dues or not. This proceeding was to be instituted by the petition of the tax-payer, and defended by the commonwealth's attorney, and the matter was to be tried by jury. If the decision should be in favor of the tax-payer, the judgment was to be certified to the treasurer, who thereupon was required to receive the coupons for taxes, and refund the morey paid by the tax-payer out of the first money in the treasury. The law further provided that, if any tax-payer should apply for a mandamus to compel the collector to receive his coupons for taxes, a similar proceeding should take place for the purpose of ascertaining the identity and validity of the coupons, and, when found to be genuine, a mandamus might issue. The suggestion upon which this law was based, as recited in the preamble thereof, was that many spurious, stolen, and forged bonds were in circulation, which made it imprudent to receive coupons in payment of taxes without an investigation first had with regard to their genuineness and validity. It is apparent that such a cumbrous mode of proceeding was a very awkward substitute, so far as the tax-payer was concerned, for the reception of his coupons as so much money when presented. Another act, approved on the 26th of January, 1882, provided that, in case of proceedings instituted against a tax-payer for the collection of his tax, notwithstanding his tender of coupons in payment thereof, he should be authorized to pay the tax under protest, in lawful money, and might within 30 days thereafter sue the officer for the amount, and, if it should be determined that it was wrongfully collected, the amount should be returned; and it was declared that no writ of injunction, supersedeas, mandamus, prohibition, or other writ whatever, should be issued to hinder or delay the collection of tax. Another act, approved on the 7th of April in the same year, changed the general law of mandamus to coincide with the provisions of the act of January 26th. The validity of these acts came before this court for consideration n t he case of Antoni v. Greenhow, and the question in that case was whether they so far affected the remedy of the holder of coupons as to impair the obligation of the contract made by the state to receive them for taxes and other dues. This was the general question presented, although it is true that the particular question in that case was whether the proceeding by mandamus to compel the acceptance of the coupons in payment of taxes and other dues was unconstitutionally obstructed. The case was instituted by Antoni, a tax-payer, by a petition to the supreme court of appeals of Virginia for a mandamus against Greenhow, the treasurer of the city of Richmond, to compel him to accept a coupon tendered by the petitioner in part payment of his taxes. The treasurer answered that he was ready to receive the coupon as soon as it had been legally ascertained to be genuine, and by law receivable, referring, of course, to the law as it then stood, prescribing the special proceedings before mentioned for ascertaining the genuineness and validity of coupons. To this answer a demurrer was filed. Upon the hearing the court was equally divided on the questions involved, and denied the writ. The judgment was brought by writ of error to this court, and the precise question was whether the acts of 1882 unconstitutionally impeded the remedy by mandamus. The court, in discussing the question, discussed the general effect of the said statutes, and came to the conclusion that they did not interpose any material obstructions to the proceeding, so as to be obnoxious to the charge of impairing the obligation of the contract. Under all the obstacles with which the holders of coupons now had to contend in utilizing those instruments in the payment of taxes and public dues, (the only way in which any satisfaction thereof could be obtained,) they still succeeded in disposing of many of them; and more stringent legislation was finally resorted to, for the evident purpose of suppressing their use altogether. In the session of 1884, several acts of the general assembly were passed to this end. By an act approved March 12, 1884, it was made the duty of the attorneys for the commonwealth to defend the suits brought by tax-payers, and, if decided against the commonwealth, to carry the case to the higher courts by appeal; to defend all suits brought in the federal courts; and to carry judgments against the commonwealth or the collector of taxes by appeal to the supreme court of the United States. An act approved March 13, 1884, declared that no action of trespass or on the case should be brought or maintained against any collecting officer for levying upon the property of any tax-payer who had tendered in payment, in whole or in part, any coupons cut from bonds of the state for such taxes, and who should refuse to pay his taxes in gold, silver, United States treasury notes, or national bank notes. Another act, approved on the 15th of March, 1884, required all licenses to be paid in lawful money of the United States. Still another act, approved March 19, 1884, required that all coupons received for taxes beyond what they would have been exchanged for under the Riddleberger act, should be charged to the bond from which they were clipped as a payment on the principal of the bond. Finally, by the tax act approved March 15, 1884, (section 65,) it was declared that no person should sell tax-receivable coupons from bonds of the state of Virginia without a special license, for which privilege he should pay $1,000 for each office or place of business kept for that purpose, and in addition thereto a tax of 20 per centum upon the face value of all tax-receivable coupons sold by him, and should give to the purchaser a certificate stating that he had sold such coupons to the purchaser, naming him, and specifying the number and amount of the coupons and date of sale; and, whenever such coupons should be tendered for taxes, the broker's certificate should be delivered to the collector. This section was subsequenly amended by an act passed May 23, 1887, so as to include in the prohibition not only the selling, or offering to sell, tax-receivable coupons, but the tendering, passing, or offering to tender or pass for another any such coupons, without a special license therefor; and the license fee was made $1,000 for the privilege of selling, or offering to sell, coupons in each county, city, or town of over 10,000 inhabitants, and $500 for each county, city, or town of under 10,000 inhabitants, and the privilege was confined to selling, tendering, and passing such coupons to tax-payers residing, or owning property subject to tax, within the county, city, or town in which the license was obtained; and it was declared that any person violating this provision should be deemed guilty of a misdemeanor, and upon conviction should be fined, at the discretion of a jury, not less than $500 nor more than $2,000. Section 91 declared that every attorney at law should pay an annual license fee of $15 if under five years' practice, and $25 if over five years' practice, but that no attorney thus licensed should be allowed to bring suit against the commonwealth, or any treasurer or collector of taxes, for the recovery of money for coupons tendered for taxes, unless he took out a special license therefor, for which privilege he should pay a specific license tax, in addition to the tax before required, of $250. In April, 1885, after the passage of these various acts, the Virginia Coupon Cases, so called, reported in 114 U. S. 266, et seq., 5 Sup. Ct. Rep. 903, 923, 924, 925, 928, 931, 932, 962, 1020, came before this court for consideration. There were eight of these cases. One of them (Poindexter v. Greenhow, the leading case in the report) was an action of detinue, brought by Poindexter, a tax-payer, against Greenhow, treasurer of Richmond, for a desk of the plaintiff, of the value of $30, seized and taken by Greenhow on the 25th or April, 1883, for the purpose of raising the taxes due from the plaintiff after he had tendered coupons in payment thereof. Upon an agreed statement of facts, no dispute being raised as to the genuineness of the coupons, judgment was given in the hustings court of Richmond for the defendant, on the ground that the plaintiff should have paid his tax in lawful money, and pursued the remedy pointed out in the acts of 1882. As this was the highest court in the state in which a decision in the case could be had, the judgment was brought by writ of error to the supreme court of the United States; and the question was now directly raised whether the restraining acts passed by the legislature of Virginia were of such force and validity as to prevent the taxpayer from suing the collecting officer for taking his goods in satisfaction of taxes after a tender of coupons for the payment thereof, without adopting the proceedings required by the said acts. This court held that the acts were unconstitutional so far as they prohibited the collector or receiver of the taxes from accepting coupons issued under the act of 1871 in payment of taxes, according to the contract contained in said act, and imposed upon the tax-payer the circuitous and onerous proceeding of establishing the genuineness of his coupons in court; that the tender of the coupons was equivalent to the tender of legal money in payment of the tax, and exonerated the tax-payer from further molestation in respect thereof; and that, if he continued to hold himself in readiness to pay said tax in the coupons tendered, his property could not lawfully be taken in satisfaction of the same. The court distinguished this remedy of the tax-payer from that which was in question in the case of Antoni v. Greenhow, in that in the latter case the proceeding by mandamus alone was under consideration, and that from of proceeding for relief was held not to be materially obstructed by the acts of 1882; and it was held that nothing in the decision of that case concluded the rights of tax-payers and coupon holdersin reference to other remedies which the law gave them for the unlawful seizure of their property in satisfaction of the tax, after having duly tendered coupons in payment thereof. Therefore, without expressly overruling the case of Antoni v. Greenhow, the court decided that the acts referred to were unconstitutional, so far as they had the effect of depriving the tax-payer of his remedy by detinue or trespass or case, or other proper action, for unlawful seizure of his goods after tendering tax-receivable coupons in payment of his taxes. The judgment of the hustings court was therefore reversed. The question was very fully and elaborately discussed by Mr. Justice MATTHEWS in delivering the opinion of the court, although there was a dissenting opinion on the part of the chief justice and three of the associate justices. Two other of the coupon cases (White v. Greenhow and Chaffin v. Taylor) were cases of trespass for taking the property of the tax-payers in payment of taxes after they had tendered coupons in payment thereof, and were in all substantial respects similar to the case of Poindexter v. Greenhow, and were decided in the same way. In olne of them (Chaffin v. Taylor) the act of March 13, 1884, which expressly forbids an action of trespass or case against a collecting officer, was referred to and relied on by the defendant in the action. A fourth case, that of Allen v. Railroad Co., auditor of accounts of the state of Virginia, was a bill for injunction, filed in the circuit court of the United States, to prevent the defendant from seizing the cars and other personal property of the complainant in satisfaction of taxes alleged to be due, for the payment of which the railroad company had tendered tax-paying coupons. An injunction was granted by the circuit court to prevent the seizure of the complainant's property, and the decree was affirmed by this court upon the same grounds which were taken in the case of Poindexter v. Greenhow. The fifth case (Carter v. Greenhow) was an action brought in the circuit court of the United States, and founded upon section 1979 of the Revised Statutes of the United States, by which every person who, under color of any statute, etc., of any state or territory, subjects a citizen of the United States, or other person within the jurisdiction thereof, to the deprivation of any rights, privileges, or immunities secured by the constitution and laws of the United States, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. The plaintiff in said action set forth that in May, 1883, he tendered certain tax-paying coupons of the state, in payment of taxes due from him, to the defendant Greenhow, treasurer of the city of Richmond, who refused to receive the same in payment, and unlawfully entered upon plaintiff's premises, and seized and took certain property of the plaintiff, to sell the same in payment of said taxes; that the plaintiff had a right, under the constitution of the United States, to pay his said taxes in the coupons referred to, and the defendant refused to receive the same under the color of, and by the command of, the act of assembly of the state of Virginia, approved January 26, 1882, which forbids collectors of taxes due the state to receive in payment thereof anything except gold, silver, etc.; and that he levied on said property under the command of the eighteenth section of another act of assembly, approved April 1, 1879, and of other statutes enacted by the general assembly of the state of Virginia, which statutes he alleged to be repugnant to the constitution of the United States, and void. The amount of damages claimed in the action was less than $500, and therefore was not within the jurisdiction of the circuit court of the United States, unless it should be sustained by the section of the Revised Statutes referred to. Judgment was given for the defendant, and was affirmed by this court on the ground that the case did not come wthi n section 1979, because the right claimed was not one of the rights referred to in that section. The sixth case (Pleasants v. Greenhow) was a bill for injunction, filed in the circuit court of the United States, to restrain the defendant Greenhow from levying on plaintiff's property for taxes after coupons were tendered therefor. The amount of taxes being less than $500, relief was prayed for on the same ground, or deprivation of rights, which was preferred as the cause of action in the case of Carter v. Greenhow. The bill was dismissed by the circuit court, and its decree was affirmed by this court for the same reason which prevailed in that case. The seventh case was Marye v. Parsons. Parsons, a citizen of New York, filed a bill in equity in the circuit court of the United States against Marye, auditor of the commonwealth of Virginia; Greenhow, treasurer of the city of Richmond; Hill, treasurer of the city of Norfolk; Dunnington, treasurer of the city of Lynchburg; Munford, commissioner of revenue of Richmond; Price, commissioner of Lynchburg; and Langley, commissioner of Norfolk. He alleged that he was the owner of a large amount of coupons cut from bonds of Virginia issued under the act of 1871, and receivable by that act in payment for taxes, debts, and demands due the state, a list of which coupons was appended to the bill. He claimed that they constituted a contract with the state, and, after setting forth the laws which had been passed by the state of Virginia for preventing or interfering with the use of such coupons in the payment of taxes and other state dues, which laws he alleged to be unconstitutional and void, he prayed that the defendants, as officers of the state, might be compelled specifically to perform the contract of the state with regard to said coupons, and to receive them in payment of taxes and other dues, and that a mandatory injunction for that purpose might be issued. The defendants filed a demurrer, plea, and answer to the bill; and a perpetual injunction, as prayed for, was awarded by the circuit court. The complainant did not allege that he owed any taxes or other demands to the state of Virginia for which he had offered coupons in payment, but his ground of action was that the coupons held by him were valueless so long as the officers of the state, in obedience to its laws, refused to receive such coupons in payment of taxes, and hence he sought the relief prayed for in his bill. This court reversed the decree of the circuit court, holding that the injury complained of was of an abstract nature, damnum absque injuria, and that the bill should have been dismissed on that ground, and that none but tax-payers, or those who are indebted to the state upon some other claim or demand, are in a position to complain of the refusal of the officers of the state to receive coupons in payment of such taxes and demands. The remaining case was that of Moore v. Greenhow, being a petition for a mandamus to compel the defendant to receive coupons in payment of a license tax as a sample merchant; the petitioner not having pursued the course pointed out by the act of January 14, 1882, for establishing the genuineness of the coupons tendered by him. The petition was denied by the circuit court of Richmond; and its decision was affirmed, in conformity with the conclusion arrived at in the case of Anotoni v. Greenhow, that the act of January 14, 1882, as applicable to the remedy of mandamus, did not violate the constitution of the United States. Several other coupon cases came before this court in October term, 1885, and were decided in February, 1886. They were Barry v. Edmunds, 116 U. S. 550, 6 Sup. Ct. Rep. 501; Chaffin v. Taylor, 116 U. S. 567, 6 Sup. Ct. Rep. 518; Royall v. Virginia, 116 U. S. 572, 6 Sup. Ct. Rep. 510; and Sands v. Edmunds, 116 U. S. 585, 6 Sup. Ct. Rep. 516. These cases do little more than repeat the views of the court contained in the Coupon Cases decided in the previous year, except, perhaps in deciding, in the case of Royall v. Virgina, that the license tax of a practicing lawyer was a tax within the meaning of the act of 1871, and payable in coupons attached to bonds issued under that act. In another case (Royall v. Virginia, 121 U. S. 102, 7 Sup. Ct. Rep. 826) it appeared that an information was filed against Royall for practicing as a lawyer without first having obtained a revenue license. He pleaded payment of the license fee partly in a coupon cut from a bond issued under the act of 1871, and partly in cash. The commonwealth demurred to this plea, and it was held that the demurrer admitted that the coupon was genuine, and bore on its face the contract of the state to receive it in payment of taxes, etc., and that this showed a good tender, and brought the case within the ruling in Royall v. Virginia, 116 U. S. 572, 6 Sup. Ct. Rep. 510. In the session of the general assembly of Virginia of 1886, several additional acts were passed, all having for object the imposition of further obstructions and impediments in the way of using the tax-paying coupons. An enumeration of these acts, with a general indication of their purport, is all that it is necessary to state. By the act of January 21, 1886, it was declared that expert evidence shall not be received of the genuineness of any paper or instrument made by machinery, or in any other manner than by the actual or personal handwriting of the party to be charged, or his agent. By the act of January 26, 1886, it was declared that, in the trial of any issue involving the genuineness of a coupon purporting to have been cut from any bond authorized by law to be issued by the state, or by any city, county, or corporation, the defendant may demand the production of the bond, and thereupon it shall be the duty of the plaintiff to produce such bond, with proof that the coupon was actually cut therefrom. On the same day another act was passed, declaring that any person who shall solicit or induce any suit or action to be brought against the state of Virginia, or any citizen thereof, by verbal representations or by writing or printing, shall be deemed guilty of the offense of champerty, and subject to fine and imprisonment. By the act of March 1, 1886, it was declared that any person licensed to practice law in Virginia who shall solicit or induce any suit or action to be brought against the state, or any citizen thereof, by verbal representations, or by writing or printing, shall be deemed guilty of barratry; and, if found guilty, it is made the duty of the court to revoke his license, and disbar him forever from practicing law in the commonwealth. By an act of March 4, 1886, it was declared that all license fees required for the transaction of any business in the state shall be paid in coin, legal-tender notes, or national bank bills; and, if coupons shall be tendered in payment thereof, they shall be received by the officer for identification by the proceedings prescribed in the act of 1882, but no license shall issue to the applicant, nor shall he have the right to conduct business or pursue his profession until said coupons have been verified in the manner prescribed by said act; and by another act, passed February 27, 1886, it was declared that after the 1st day of July, 1888, no petition shall be filed, or other proceeding instituted, to try the question whether any paper purporting to be a coupon detached from any bond of the state is genuine, and legally receivable for taxes and other state dues, except within one year from said 1st day of July, 1888, if such coupon first became receivable prior to that time, and within one year from the time the coupon becomes receivable, if it becomes receivable after that date. This law became incorporated in the Code of 1887 as section 415. Finally, as, according to the decisions of this court in 1885 and 1886, the collecting officers were liable to action for proceeding against the property of the tax-payers who had tendered coupons in payment of their taxes, on the 12th of May, 1887, an actwas passed authorizing suits to be brought against such tax-payers for taxes due from them, which suits were to be in the name of the commonwealth, and to be commenced by a notice served on the party liable for the tax, or on the agent of such party who may have tendered the coupons. It the defendant relies upon the tender of coupons as payment, he shall plead the same specifically in writing, and file the coupons tendered with the clerk; and the burden of proving the tender and genuineness of the coupon shall be on the defendant. If established, the judgment shall be for the defendant on the plea of tender. If the defendant fail in his defense, there shall be judgment for the commonwealth for the taxes due, and interest and costs, and execution shall issue thereon as in other cases; and, if judgment be against the defendant, a fee of $10 is allowed to the attorney for the commonwealth as part of the costs in the case, but the commonwealth is not to be liable for any fees or costs. The act is set forth in full in the case In re Ayers, 123 U. S. 451, 8 Sup. Ct. Rep. 164. Since the passage of this act the cases In re Ayers, In re Scott, and In re McCabe, Id., have come before this court for consideration. They were decided in December, 1887. These cases came before us on applications for habeas corpus directed to the marshal of the United States for the eastern district of Virginia, who held the applicants,—one of them the attorney general of Virginia, another the auditor of the state, and the third the commonwealth's attorney for Loudoun county,—who had been committed for contempt by the circuit court of the United States for disobedience to a restraining order. The case in which said order was made was this: James P. Cooper and others, subjects of Great Britain, filed their bill of complaint in the circuit court of the United States for the district aforesaid against Marye, auditor of the state of Virginia, Ayers, attorney general therof, and the treasurers of counties, cities, and towns in the state, and the commonwealth's attorneys of counties, cities, and towns therein, in which bill it was alleged, among other things, that the complainants, on the faith of the decisions of this court that the state of Virginia could not impair the value of the coupons issued under the acts of 1871 and 1879 as a tender for taxes, had bought a large quantity of said coupons in open market in London and elsewhere, amounting to more than $100,000, for the purpose of selling said coupons to the tax-payers of Virginia, believing that they would be able to sell them at considerable advance. The bill then set forth the act of assembly of May 12, 1887, authorizing and requiring suits to be brought in the name of the commonwealth against tax-payers who should have tendered coupons in payment of their taxes. It further alleged that this act is repugnant to the constitution of the United States, for the reason that, taken in connection with the act of January 26, 1882, it first commands the state's officers to refuse to receive those coupons, and then commands them to bring suits against those who have tendered them, as well as against those who have tendered spurious coupons; that it imposes upon the defendants heavy costs and fees, etc. It further set out the provisions of various other acts, before referred to, tending to embarrass the holders of coupons in the use of the same, and in the proceedings for establishing their genuineness. The bill prayed that the defendants might be restrained and enjoined from bringing or commencing any suit provided for by the said act of May 12, 1887, or from doing any other act to put said statute into force and effect, and that until the hearing of a motion for said injunction a restraining order might be made to that effect. A restraining order was accordingly made by the court in pursuance of the prayer of the bill, and it was for disobedience to this order that the parties in the Cases of Ayers, Scott, and McCabe were committed for contempt. This court, after a very full and careful examination of the questions arising in the cases, decided that the suit of Cooper and others against Marye, Ayers, and others, in which the said restraining order and order of commitment for contempt were made, was virtually, and in effect, a suit against the state of Virginia, and therefore in violation of the eleventh amendment of the constitution of the United States, which declares that 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 or subjects of any foreign state; and the judgment of the court was that the circuit court had no jurisdiction to entertain said suit, and that its acts and proceedings were void; and the petitioners, Ayers, Scott, and McCabe were discharged. The cases in which the question has been considered in this court as to when a proceeding against the officers of a state may be considered as a proceeding against the state itself, or only as a proceeding against the officers for a violation of a clear duty imposed upon them by law, were carefully reviewed and distinguished in the elaborate opinion of the court delivered by Mr. Justice MATTHEWS, and may be referred to as throwing much additional light upon that vexed and interesting question; but it is particularly referred to here, in connection with the other cases cited, for the purpose of showing the conditions, circumstances, and aspects in which the questions arising on these tax-paying coupons have presented themselves to the court. Without committing ourselves to all that has been said, or even all that may have been adjudged, in the preceding cases that have come before the court on the subject, we think it clear that the following propositions have been established: First. That the provisions of the act of 1871 constitute a contract between the state of Virginia and the lawful holders of the bonds and coupons issued under and in pursuance of said statute. Second. That the various acts of the assembly of Virginia passed for the purpose of restraining the use of said coupons for the payment of taxes and other dues to the state, and imposing impediments and obstructions to that use, and to the proceedings instituted for establishing their genuineness, do in many respects materially impair the obligation of that contract, and cannot be held to be vaild or binding in so far as they have that effect. Third. That no proceedings can be instituted by any holder of said bonds or coupons against the commonwealth of Virginia, either directly, by suit against the commonwealth by name, or indirectly, against her executive officers, to control them in the exercise of their official functions as agents of the state. Fourth. That any lawful holder of the tax-receivable coupons of the state issued under the act of 1871, or the subsequent act of 1879, who tenders such coupons in payment of taxes, debts, dues, and demands due from him to the state, and continues to hold himself ready to tender the same in payment thereof, is entitled to be free from molestation in person or goods on account of such taxes, debts, dues, or demands, and may vindicate such right in all lawful modes of redress,—by suit to recover his property, by suit against the officer to recover damages for taking it, by injunction to prevent such taking where it would be attended with irremediable injury, or by a defense to a suit brought against him for his taxes, or the other claims standing against him. No conclusion short of this can be legitimately drawn from the series of decisions which we have above reviewed without wholly overruling that rendered in the Virginia Coupon Cases, and disregarding many of the rulings in other cases, which we should be very reluctant to do. To the extent here announced, we feel bound to yield to the authority of the prior decisions of this court, whatever may have been the former view of any member of the court. There may be exceptional cases of taxes, debts, dues, and demands due to the state which cannot be brought within the operation of the rights secured to the holders of the bonds and coupons issued under the acts of 1871 and 1879. When such cases occur, they will have to be disposed of according to their own circumstances and conditions. It was earnestly contended in the dissenting opinion in the Coupon Cases that the defense of a tender of coupons set up by a tax-payer, when prosecuted for the payment of his taxes, was in the nature of a set-off, and could not be enforced against a state any more than a suit could be prosecuted against it; in other words, that a set-off is in reality a cross-suit, and as such subject to the prohibition of the eleventh amendment. But the majority of the court held, and perhaps with better reason, that, where a set-off or counterclaim is made by virtue of an agreement or contract between the parties, it no longer has the character of a mere set-off, but becomes attached to the primary claim as pro tanto a defeasance thereof. At all events, such was the decision of the court, and it is not our purpose to question the authority of that decision so far as it may apply to the cases now before us. It remains to apply the law as we conceive it to be to the several cases now under consideration. 1, 2, 3. With regard to three of these cases,—Bryan v. State of Virginia, Cooper v. Same, and McGahey v. Same,— we have very little hesitation or difficulty in coming to a conclusion. They are suits brought by the commonwealth of Virginia, against the persons severally named, under the act of May 12, 1887, for the recovery of taxes due from them, respectively. The proceedings in the last-named case may be described as a sample of them all. The case was instituted in the circuit court of Alexandria, Va., in the name of the commonwealth, by the following notice: 'To John McGahey: Take notice that on the 23d day of March, 1888, in accordance with the statutes in such cases made and provided, I shall move the circuit court of Alexandria city for a judgment against you in favor of the commonwealth of Virginia for the sum of $12.60, with interest on $6.40, part thereof, from the 15th day of December, 1886, till paid, and on $6.20, the residue, from December 15, 1887, till paid, that being the sum due by you to the said commonwealth of Virginia for taxes, together with the penalty thereon, in payment of which papers or instruments purporting to be coupons detached from bonds of the state of Virginia have been tendered and not accepted as payment, and which taxes have not been otherwise paid, due on certain real and personal property in the city of Alexandria; the said taxes being the same assessed according to law by the commonwealth of Virginia for the years 1886 and 1887 upon the property aforesaid. LEONARD MARBURY, for the Commonwealth of Virginia.' To this notice the defendant filed the following plea: 'For a plea in this behalf, the defendant says that the plaintiff ought not to maintain its action, because he says that heretofore, viz., on the 1st day of December, 1886, and on the 1st day of December, 1887, when the taxes sued for became respectively due and payable, and prior to the commencement of this action in said city, he was willing and ready to pay, and then and there tendered and offered to pay, to the plaintiff, tax-receivable coupons, then due and payable, cut from bonds issued by the plaintiff under the act of the general assembly of Virginia, approved March 30, 1871, entitled 'An act to provide for the funding and payment of the public debt,' together with lawful money of the United States, as follows, viz.: For the said tax of $6.40, one (1) coupon, No. 23, cut from bond No. 5,684, due January 1, 1883, for $3; one (1) coupon, No. 23, cut from bond No. 4,213, due January 1, 1883, for $3; and forty cents (40c.) lawful money of the United States; and for the said tax of $6.20, one (1) couon, No. 29, cut from bond No. 1,048, due January 1, 1886, for $3; one (1) coupon, No. 28, cut from bond No. 2,899, for $3, due July 1, 1885; and twenty cents (20c.) lawful money of the United States; to receive which the plaintiff then and there refused. And the defendant further says that always from the times when the said taxes became respectively due and payable, hitherto, he has been ready and willing to pay, and is still ready and willing to pay, to the plaintiff the said tax-receivable coupons and lawful money, and he now brings into court here said coupons and lawful money, ready to be paid to the plaintiff if it will accept the same; and this he is ready to verify. Whereupon he prays judgment,' etc. Upon the issue thus joined a trial by jury was had, and a verdict given for the commonwealth for $13.96, and judgment entered thereon, with costs. A bill of exceptions was taken at the trial, which shows that the defendant first moved to quash the notice of motion, and dismiss the cause, on the ground that the act of May 12, 1887, entitled 'An act to provide for the recovery by motions of taxes and certain debts due the commonwealth,' etc., is repugnant to section 10, art. 1, of the constitution of the United States, which motion was overruled. The defendant then, to maintain the issue on his part, proved that, when said taxes became respectively due and payable, he tendered in payment thereof to the proper collecting officer the coupons and lawful money described in and filed with his plea, which coupons on their face purported to have been originally attached to bonds issued by the state of Virginia under the act of March 30, 1871, being then respectively due and payable, and having each upon its face the following language: 'Receivable at and after maturity in payment for all taxes, debts, and demands due the state,' which said coupons and money the officer refused to receive. The said coupons were then offered in evidence, and are in the form following, printed wholly from an engraved plate: 'Receivable at and after maturity for all taxes, debts, and demands due the state. The commonwealth of Virginia will pay the bearer three dollars' interest, due 1st January, 1883, on bond No. 4,213. GEORGE RYE, Treasurer of the Commonwealth of Virginia.' The other coupons offered were of similar form in all respects. The defendant further proved that he never owned the bonds from which the coupons were cut, and knew nothing whatever in respect to their ownership; that the coupons when purchased by him were already detached from the bonds; and that he bought them in open market as genuine coupons, and without any reason to doubt their genuineness. He further proved that prior to September 1, 1879, the state had issued bonds of the kind and in the form authorized by said act to the amount of many millions of dollars; the coupons thereon being wholly printed from engraved plates, and not signed manually. He further offered to prove the denominations and numbers of the bonds issued under the act of March 30, 1871, and the act of March 28, 1879. He offered and read in evidence to the jury senate document 15, senate journal 1881-82, which contained a report of H. H. Dixon, second auditor of the commonwealth of Virginia, directed to the president of the senate, in answer to certain questions which had been proposed to him by the senate for its information, in which report, among other things, the said second auditor stated: 'I have the honor to report that I have no knowledge of any spurious or forged bonds or coupons issued, or purporting to have been issued, under either of the said acts. As to any bonds or coupons that may have been stolen, I have heard of none issued under the act of March 28, 1879; nor have I any knowledge of any issued under the act of March 30, 1871, except such information as may be contained in the report made to the legislature March 30, 1874, by the joint committee to investigate the sinking fund, in which a deficiency of $15,939.89 of bonds and of $1,325.45 of interest is stated.' Another report of said auditor was offered in evidence by the defendant, in which he stated as follows: 'I have the honor to report that no counterfeit or forged obligations, bonds, coupons, or certificates of the state of Virginia have in any way come to my knowledge.' The defendant then offered to prove by the testimony of an expert witness that the coupons issued were genuine coupons; but the court refused to receive such testimony or to allow it to go to the jury, because of the act of the general assembly approved January 21, 1886, to which ruling the defendant excepted on the ground that said act was repugnant to the constitution of the United States. The defendant then rested, and thereupon the commonwealth demanded of the defendant the production of the bond from which the coupons tendered purported to have been cut, with proof that said coupons were actually cut therefrom. The defendant moved the court to overrule and disallow such demand on the ground that the act of assembly approved January 26, 1886, under which the demand was made, was repugnant to the constitution of the United States, and void. But the court overruled said motion, and sustained the demand, to which the defendant excepted. The evidence being closed, the defendant prayed the court to instruct the jury that the production of the bonds from which the coupons in issue were cut, together with proof that the coupons were cut therefrom, was not necessary to establish the genuineness of the coupons, and that the act requiring this to be done is contrary to the constitution of the United States. But the court refused this instruction, and instructed the jury that such production of bonds and proof, when demanded, was necessary to establish the genuineness of the coupons, to which ruling the defendant excepted. The defendant further prayed the court to instruct the jury that, if the jury believe from the evidence that the state of Virginia issued her bonds with tax-receivable interest coupons thereto attached, which coupons were made payable to bearer, and were printed from engraved plates, and not signed manually by any officer of the state, and if they further believe that the defendant purchased the coupons filed with his plea of tender in open market, in good faith, as genuine coupons of said state, then the burden is upon the state to prove said coupons spurious, and that the act of May 12, 1887, placing upon the defendant the burden of proving them genuine, is repugnant to the constitution of the United States. This instruction was also refused by the court, and the defendant excepted. The judgment in the case was removed by writ of error to the supreme court of appeals of the state of Virginia, and was affirmed. 8 S. E. Rep. 244. The present writ of error brings this judgment before us for consideration. Wm. L. Royall and D. H. Chamberlain, for plaintiffs in error and appellant. R. A. Ayers and J. R. Tucker, for defendants in error and appellee. [Argument of Counsel from pages 690-693 intentionally omitted] The question is therefore presented to us whether the acts of assembly of the state of Virginia which required the production of the bond in order to establish the genuineness of the coupons, and prohibiting expert testimony to prove the said coupons, are or are not repugnant to the constitution of the United States. On this subject we think there can be little doubt. It is well settled by the adjudications of this court that the obligation of a contract is impaired, in the sense of the constitution, by any act which prevents its enforcement, or which materially abridges the remedy for enforcing it which existed at the time it was contracted, and does not supply an alternative remedy equally adequate and efficacious. Bronson v. Kinzie, 1 How. 311; Woodruff v. Trapnall, 10 How. 190; Furman v. Nichol, 8 Wall. 44; Walker v. Whitehead, 16 Wall. 314; Von Hoffman v. Quincy, 4 Wall. 535; Tennessee v. Sneed, 96 U. S. 69; Memphis v. United States, 97 U. S. 293; Memphis v. Brown, Id. 300; Howard v. Bugbee, 24 How. 461. We have no hesitation in saying that the duty imposed upon the tex-payer of producing the bond from which the coupns tendered by him were cut, at the time of offering the same in evidence in court, was an unreasonable condition, in many cases impossible to be performed. If enforced, it would have the effect of rendering valueless all coupons which have been separated from the bonds to which they were attached, and have been sold in the open market. It would deprive them of their negotiable character. It would make them fixed appendages to the bond itself. It would be directly contrary to the meaning and intent of the act of 1871, and the corresponding act of 1879. It would be so onerous and impracticable as not only to affect, but virtually destroy, the value of the instruments in the hands of the holder who had purchased them. We think that the requirement was unconstitutional. We also think that the prohibition of expert testimony in establishing the genuineness of coupons was in like manner unconstitutional. In the case of coupons made by impressions from metallic plates, as these were, no other mode of proving their genuineness is practicable; and that mode of proof is as satisfactory as the proof of handwriting by a witness acquainted with the writing of the party whose signature it purports to be. One who is expert in the inspection and examination of bank-notes, engraved bonds, and other instruments of that character, is able to detect almost at a glance whether an instrument is genuine or spurious, provided he has an acquaintance with the class of instruments to which his attention is directed. It is the kind of evidence resorted to in proving the genuineness of bank-notes. It is the kind of evidence naturally resorted to to prove the genuineness of coupons, and other instruments of that character. To prohibit it is to take from the holder of such instruments the only feasible means he has in his power to establish their validity. In addition to these objections to the proceedings, we question very much whether the act of May 12, 1887, which authorizes and requires a suit to be brought against the tax-payer who tenders payment in coupons, as well as the other acts which require their rejection, are not themselves laws impairing the obligation of the contract. They make no discrimination between genuine and spurious coupons. A bank which should refuse to receive its bills in payment of a note due from one of its customers, but should sue him on his note, and leave him to establish the genuineness of the bills by suit against the bank, would not be regarded with much favor in a business community. It is the duty of its cashier or receiving teller to judge of the genuineness of the bills offered, and to refuse them as spurious on his peril, or rather on the peril of the bank itself. So, in regard to these coupons, instead of relegating the tax-payer to a course of litigation, the officers of the state charged with the duty of collecting the taxes should themselves decide on the genuineness of the coupons offered. Penalties for knowingly offering spurious coupons, or using them in any way, for sale or otherwise, would probably be as effective in preventing their circulation as like penalties are in suppressing counterfeit bank-bills, and other negotiable instruments. In the case of Bryan v. State of Virginia, the coupons that were tendered for the payment of the tax sued for purported to have been cut from bonds issued under the act of March 30, 1871; and the same obstacles to the proof of their genuineness were interposed as in the Case of McGahey, by requiring the production of the bonds from which the coupons were cut, and by excluding expert testimony. The same also is true of the proceedings in the case of Cooper v. Id. We are of opinion, therefore, that the judgements in these three cases ought to be reversed, and the records severally remanded for the purpose of such proceedings as may be required in due course of law, according to this opinion. 4. The case of Ellett v. State of Virginia was a suit brought to recover the amount of a judgment previouly rendered against Ellett in the circuit court of Richmond for taxes and costs; the amount of taxes being $39.52, and the costs being $24.49. Execution having been issued upon this judgment, the defendant, Ellett, tendered to the sheriff, in payment thereof, coupons for the whole amount, lacking $1.49, which he tendered in lawful money. The coupons purported to be cut from a bond issued under the act of March 30, 1871, and were overdue; and each bore upon its face a contract of the state of Virginia that it should be received in payment of all taxes, debts, and demands due to her. The defendant pleaded this tender, and averred that the sheriff refused to receive the said coupons and money, alleging that he was forbidden to do so by the act of May 12, 1887, and that he (the defendant) has always been ready and willing since said tender to deliver said coupons and money to the sheriff in payment of said execution, and was still ready and willint to do so, and brought the same into court for that purpose. This plea was rejected by the court. A verdict was given for the plaintiff, and judgment rendered thereon, which was affirmed by the supreme court of appeals of the state of Virginia. 8 S. E. Rep. 246. The point made in this case is that the costs included in the judgment on which the present suit was brought were not a debt due to the state of Virginia in her own right, but were due to the officers in whose favor they were taxed, and whose services they were to compensate. We think that this point is untenable. The costs were recovered by the state of Virginia in the original action to compensate her for the fees which she had to pay to the officers for their services. The demand of the officers for their costs was a demand against the state of Virginia, and not against the defendant; and, by reason of this demand against, her, she was entitled to recover the amount against the defendant. So that in no legal sense can it be said that the costs included in the judgment belonged to the officers, and not to the state. They were recovered by her in form, and they belonged to her, when recovered, in substance. We are of opinion, therefore, that this judgment must also be reversed, and the record remanded for the purpose of such proceedings as may be required in due course of law, in accordance with this opinion. 5. The next case to be considered is that of Cuthbert v. State of Virginia. This was a presentment found against Cuthbert in the hustings court of the city of Petersburg, Va., charging that he did on the 1st day of November, 1888, and had continuously from day to day since that time, in said city, unlawfully sold and offered to sell, and unlawfully tendered and passed to divers persons, (naming them,) tax-receivable coupons from the bonds of the state of Virginia, without having previously obtained a special license, as required by law, authorizing him (said Cuthbert) to sell and offer to sell, and to tender and pass, such coupons, he, in doing the same, acting as the agent and broker for another person or persons to said jurors unknown, contrary to the act of assembly in that behalf. The presentment contained two other counts, which were abandoned. The defendant tendered a special plea in writing, to which the commonwealth demurred, and the court sustained the demurrer. The defendant then pleaded not guilty. The jury, under the rulings of the court, found him guilty, and assessed a fine of $500. On the trial the case was submitted to the jury upon an agreed statement of facts. The principal facts shown by this statement were that on the 1st day of November, 1888, the defendant sold and offered to sell, and tendered and passed, and offered to tender and pass, for another, as charged in the presentment, tax-receivable coupons from bonds of the state of Virginia, which were overdue, and bore upon their face the contract of said state that they should be received in payment of all taxes, debts, and demands due said state from tax-payers owing taxesto the said state, and that he did not have the speciallicense therefor required by the act of May 23, 1887, and had not paid the license tax of $1,000 provided by said act for the privilege of selling the same, nor the state tax of 20 per centum upon the face value of the same; also that the defendant, Cuthbert, was a member of a firm doing business in Petersburg as insurance agents, representing various foreign insurance companies, all of which had paid to the state all license taxes assessed upon them; also that the defendant was not engaged in any business upon which a license tax is charged by the state, except the business of selling tax-receivable coupons from bonds of thestate, and had not been so engaged. Upon this agreed statement of facts the defendant moved the court to instruct the jury that the act under which the presentment was found is repugnant to section 10 of article 1 of the constitution of the United States, and therefore void, and that they must acquit the defendant. The court refused to give this instruction, but instructed the jury that the said act is not repugnant to the constitution, and the defendant excepted. After the verdict was rendered the defendant moved the court to set it aside upon the same grounds, which motion was overruled. The cause was carried to the supreme court of appeals, and by that court the judgment was affirmed, and its decision is now here for review. The question in this case is whether the act requiring a license tax for the sale of coupons was or was not in violation of that clause of the constitution of the United States which relates to impairing the obligation of contracts. It is manifest from the terms of the act of 1871, as well as that of 1879, under which tax-receivable coupons were authorized to be and were issued, that said coupons were intended to circulate from hand to hand, being expressly made payable to bearer, and being made receivable for taxes, debts, dues, and demands due to the state. Any undue restraint upon the free negotiability of these instruments, therefore, would be a violation of the clear understanding and agreement of the parties. That the license required by the sixty-fifth section of the tax act of March 15, 1884, as amended by the act of May 23, 1887, was a very material interference with such negotiability, is most manifest. If sustained as a valid act of legislation, and carried into effect, it would prevent the negotiation of such coupons by any holder thereof. The enormous license fee of $1,000 in towns of more than 10,000 inhabitants, and of $500 in other counties and towns, with the exaction of 20 per cent. of the face value on every coupon sold, was absolutely prohibitory in its effect. A material quality of the coupons—their negotiability—was thereby destroyed. The point cannot be made any clearer by argument than it appears by the mere statement of it. This follows whether the law is construed as applicable to the sale by a couponholder of his own coupons, or to the sale or passing by any person of coupons for another. An owner of coupons residing in New York or London, under the operation of the law, if the coupons were not paid by the state when they became due, would be obliged to go in person to Virginia in order to dispose of them to those who might be able and willing to use them in the payment of taxes. The judgment in this case must also be reversed, and the record remanded for the purpose of such proceedings to be had as law and justice may require in accordance with this opinion. 6. The next case to be considered is that of Ex parte Brown, which was an application of the petitioner, Brown, to the circuit court of the United States for the eastern district of Virginia, to be discharged from imprisonment in the custody of R. A. Carter, the sergeant of said city and ex officio jailer thereof. The petition sets forth that the petitioner was sentenced by the hustings court of the city of Richmond to pay a fine of $25 and costs, amounting to $26.0, and to remanin in the jail of the said city until the same should be paid, in the custody of the said sergeant; that on the 3d of July, 1889, he tendered W. P. Lawton, clerk of the hustings court, in payment of said fine, $18 in coupons and $8.70 in lawful money of the United States; that each of said coupons was cut from a bond issued by the state of Virginia under the act of March 30, 1871, and was overdue, and bore upon its face the contract of the state that it should be receivable in payment of all taxes, etc.; that the clerk refused to receive said coupons and money in payment of said fine and costs because certain acts of the general assembly of Virginia forbade him so to receive them; that thereafter, on the same day, he tendered the same coupons and current money to Carter, sergeant as aforesaid, and demanded his release from custody; that said sergeant also refused to receive said coupons and money in payment of said fine and costs, and he refused the same because the coupons so tendered by the petitioner became due prior to the 1st day of July, 1888, and because section 415 of the Code of Virginia of 1887 prohibits the receipt of any coupons of said state which became due prior to July 1, 1888, as those tendered did; that said section 415 is repugnant to the constitution of the United States; and that the petitioner is therefore detained in said jail, and in custody of said sergeant, in violation of the said constitution. The petitioner therefore prayed a habeas corpus to be directed to the said Carter, sergeant aforesaid, and that he be discharged from custody. The writ being issued, Carter made return thereto in substance as follows: He annexed to said return a copy of the judgment and order of the hustings court of Richmond committing the petitioner to the jail of the city until he should pay a certain fine imposed upon him, as stated in the petition. He admitted that on the 3d of July, 1889, the petitioner tendered the coupons and money set out and described in his petition to the clerk, (Lawton,) who refused to receive the same, and that on the 3d of July, 1889, the petitioenr tendered to him, (Carter,) $8.70 in current money of the United States, and $18 in coupons purporting to be detached from bonds of the state of Virginia; but he denied that they were genuine coupons, legally receivable. He further stated in his return that, by section 415 of the Code of Virginia of 1887, it is provided that no petition shall be filed, or other proceeding had, to try whether any paper printed, written, engraved, or lithorgraphed, purporting to be a coupon detached from any bond of said state, is a genuine coupon legally receivable for taxes, debts, or demands of the state, where said coupon became due prior to July 1, 1888, unless said petition was filed or proceeding had within one year from July 1, 1888; and he charged the fact to be that the coupon held by the petitioner became due prior to July 1, 1888. The court below refused to discharge the prisoner, holding that section 415 of the Code of 1887 is not repugnant to the constitution of the United States. The petitioner thereupon appealed to this court, and the question is as to the constitutionality of the section referred to. We have already set forth the provisions of this law in a former part of this opinion; it being the act passed February 27, 1886, and afterwards incorporated into the Code of 1887 as section 415. Under the operation of this act, after the 1st day of July, 1889, of course, all coupons that were then more than a year past due were absolutely precluded from being used in payment of dues to the state, as provided for in the act of 1871. Concerning the obstacles which had been interposed in the way of their use for that purpose, it is not difficult to imagine that a very large proportion of the coupons attached to the bonds of 1871 had not been presented, or, if presented, had not been received for taxes, prior to the date referred to. Mr. Daniel H. Chamberlain and Mr. William L. Royall for plaintiff in error. Mr. R. A. Ayers, Attorney General of the State of Virginia, and Mr. J. Randolph Tucker for defendant in error. [Argument of Counsel from pages 703-704 intentionally omitted] Mr. JUSTICE BRADLEY, continuing, delivered the opinion of the court. The passage of a new statute of limitations, giving a shorter time for the bringing of actions than existed before, even as applied to actions which had accrued, does not necessarily affect the remedy to such an extent as to impair the obligation of the contract within the meaning of the constitution, provided a reasonable time is given for the bringing of such actions. This subject has been considered in a number of cases by this court, particularly in Terry v. Anderson. 95 U. S. 628, 632, and Koshkonong v. Burton, 104 U. S. 668, 675, where the prior cases are referred to. In Terry v. Anderson, Chief Justice WAITE, speaking for the court, said: 'This court has often decided that statutes of limitation affecting existing rights are not unconstitutional if a reasonable time is given for the commencement of an action before the bar takes effect. Hawkins v. Barney, 5 Pet. 457; Jackson v. Lamphire, 3 Pet. 280; Sohn v. Waterson, 17 Wall. 596; Christmas v. Russell, 5 Wall. 290; Sturges v. Crowninshield, 4 Wheat. 122. It is difficult to see why, if the legislature may prescribe a limitation where none existed before, it may not change one which has already been established. The parties to a contract have no more a vested interest in a particular limitation which has been fixed than they have in an unrestricted right to sue. * * * 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. Of that the legislature is primarily the judge, and we cannot overrule the decision of that department of the government unless a palpable error has been committed.' The court in that case held that the period of 9 months and 17 days, given to sue upon a cause of action which had already been running nearly four years, was not unconstitutional. The liability in question was that of a stockholder under an act of incorporation for the ultimate redemption of the bills of a bank which had become insolvent by the disaster of the civil war. The legislature of Georgia on the 16th of March, 1869, passed a statute requiring all actions against stockholders in such cases to be brought by or before the 1st of January, 1870. In the case of Koshkonong v. Burton, the suit was brought upon bonds of the town of Koshkonong issued January 1, 1857, with interest coupons attached. The coupons matured at different dates from 1858 to 1877. The action was brought on the 12th of Nay, 1880, and the question was whether the action as to the coupons maturing more than six years before the commencement of the suit was barred by the statute of limitations of Wisconsin. In March, 1872, an act was passed to limit the time for the commencement of actions against towns, counties, cities, and villages on demands payable to bearer. It provided that no action brought to recover money on any bond, coupon, interest warrant, agreement, or promise in writing made by any town, county, city or village, or upon any installment of the principal or interest thereof, shall be maintained unless the action be commenced with six years from the time when such money has or shall become due, when the same has been made payable to bearer or to some person or bearer, or to the order of some person, or to some person or his order: provided, that any such acting may be brought within one year after this act shall take effect. This court, speaking by Mr. Justice HARLAN, said: 'It was undoubtedly within the constitutional power of the legislature to require, as to existing causes of action, that suits for their enforcement should be barred unless brought within a period less than that prescribed at the time the contract was made, or the liability incurred, from which the cause of action arose. The exertion of this power is, of course, subject to the fundamental condition that a reasonable time, taking all the circumstances into consideration, be given by the new law for the commencement of an action before the bar takes effect. Whether the first proviso of the ct of 1872, as to some causes of action, especially in its application to citizens of other states holding negotiable municipal securities, is or is not in violation of that condition, is a question of too much practical importance and delicacy to justify us in considering it, unless its determination be essential to the disposition of the case in hand; and we think it is not.' The case was decided without determining the question referred to. A question of the same nature frequently arises upon statutes which require the registry of conveyances and other instruments within a limited period prescribed, and making them void, either absolutely, or in their operation as against third persons, if not recorded within such time. Such laws, as applied to conveyances and other instruments in existence at the time of their passage, are, of course, retrospective in their character, and may operate very oppressively if a reasonable time be not given for the registry required. This subject was discussed in the case of Vance v. Vance, 108 U. S. 514, 2 Sup. Ct. Rep. 854, Mr. Justice MILLER delivering the opinion of the court, where the prior cases were adverted to and commented upon. The same rule applies to those cases as in reference to statutes of limitation, namely, that the time given for the act to be done must be a reasonable time; otherwise it would be unconstitutional and void. It is evident from this statement of the question that no one rule as to the length of time which will be deemed reasonable can be laid down for the government of all cases alike. Different circumstances will often require a different rule. What would be reasonable in one class of cases would be entirely unreasonable in another. It is necessary, therefore, to look at the nature and circumstances of the case before us, and of the class of cases to which it belongs. The primary obligation of the state with regard to the coupons attached to the bonds issued under the act of 1871 was to pay them when thty became due; but, if they were not paid at maturity, the alternative right was given to the holder of them to use them in the payment of taxes, debts, dues, and demands due to the state. The very nature of the case shows that much an application of the coupons could not be made immediately, or in any very short period of time. If all the bonds were of the denomination of $1,000 each, it would require 20,000 of them to make up the funded debt of $20,000,000. These 20,000 bonds would be likely to be scattered and dispersed through many states and countries, and it would be impracticable for the holders of them to use the coupons which the state should fail to pay in cash in the alternative manner stipulated for in the contract, unless they had a reasonable time to dispose of them to tax-payers. No limitation of time was fixed by the act within which the coupons should be presented or tendered in payment of taxes or other demands. The presumption would naturally be that they could be used within an indefinite period, like bank bills. Under this condition of things, a statute of limitation giving to the holders thereof but a single year for the presentation in payment of taxes of the coupons then in their possession, perhaps never severed from the bonds to which they were attached, and comprising all the coupons which had been originally attached thereto, seems, even at first blush, to be unreasonable and oppressive. Probably not onetenth, if even so large a proportion, of the bondholders were tax-payers of the state of Virginia. The only way in which they could, within the year prescribed, utilize their coupons—the accumulation, perhaps, of years—would be to sell and dispose of them to the tax-payers. How this could be done, especially in view of the onerous laws which were passed with regard to the sale of coupons in the state, it is difficult to see. Under all the circumstances of the case, and the peculiar condition of the securities in question, we are compelled to say that in our oini on the law is an unreasonable law, and that it does materially impair the obligation of the contract. We have spoken of the act as limiting, indifferently, the time of tendering the coupons, and the time of commencing proceedings to ascertain their genuineness. Its terms relate only to the latter; and, as this proceeding cannot be instituted until the coupons have been tendered, the effect is to make a tender necessary before the expiration of one year, which can often be done only within a few days, or even hours, since the taxes may become due in that short period, and not become due again until a year after wards. This puts the unconstitutionality of the act beyond question. Without further discussion of the subject, we conclude that the judgment of the circuit court must be reversed; and the same is reversed, accordingly, and the cause remanded for the purpose of such proceedings as may be required by law and justice in conformity with this opinion. 7. The next case which we shall consider is that of Huchless v. Childrey, which was an action of trespass on the case, brought in the circuit court of the United States for the eastern district of Virginia, by Huchless, a citizen of the state of Virginia, residing in Richmond, against Childrey, the treasurer of Richmond, and, as such, collector of taxes and license taxes due to the state, to recover damages for the refusal of the said Childrey to receive tax-receivable coupons in payment or part payment of a license tax payable for a license to sell by retail wine, spirits, and other intoxicating liquors, whereby the plaintiff was prevented from pursuing the said business, which was a lawful business, and and sustained damage by reason thereof to the extent of $6,000. The declaration stated, in substance, that the plaintiff desired and intended to open and conduct the business aforesaid at 405 West Leigh street, in said city of Richmond, for one year from the 1st of May, 1889; that he was a fit person, and intended to keep a orderly house, and that the place was suitable, convenient, and appropriate for that purpose; that by the statute law of Virginia a person desiring and in tending to conduct such business must apply to the commissioner of revenue for the city or county, or a license therefor, who shall ascertain the amount to be paid, and give the applicant a certificate specifying the same, and such person shall make a deposit therefor with the treasurer or collecting officer of the city or county of the amount so ascertained, and shall take from him a receipt for such deposit indorsed on the certificate, or otherwise he shall deposit with the treasurer the amount of tax assessed by law for the license tax on said business: thereupon he shall make application in writing for a license for such business to the commissioner of the revenue for such city or county, accompanied by said certificate; and the person so desiring to conduct said business is forbidden by said statutes to conduct the same until he has appeared before the judge of the corporation or county court, and has proved that he has made such deposit, and is a fit person to conduct such business, etc.; that the license tax imposed by the laws of Virginia to be paid for the business of selling by retail, for one year, wine, ardent spirits, malt liquors, or any of them, in cities of more than 1,000 inhabitants, is $125; that on the 3d of May, 1889, plaintiff applied to the commissioner of revenue of Richmond to ascertain the amount to be paid by him as his license tax for selling by retail as aforesaid, and the commissioner gave to him a certificate specifying the same as $125; that on the same day the plaintiff presented said certificate to Childrey, the defendant, treasurer as aforesaid, and tendered to him, in payment of said license tax, $123 in coupons and $2 in lawful money, and demanded a receipt stating that he had deposieted with him $125 in said coupons and money; that Childrey refused to receive said coupons and money, andref used to give plaintiff said receipt; that each of said coupons was cut from a bond issued by the state of Virginia under the act of March 30, 1871, and each bore upon its face the contract of the state that it would be received in payment of all taxes, debts, dues, and demands due to the state; that thereafter, on the 3d day of May, 1889, the plaintiff stated to said Childrey that he desired and intended to conduct the business aforesaid at 405 West Leigh street, and then tendered to him, in payment of the license tax due to the state on said business for one years, $123 in coupons and $2.75 in lawful money, and demanded of him a certificate of such deposit, but Childrey refused to receive said coupons and money, and refused to give such certificate, and refused to receive said coupons and money in both cases, because sections 399, 536, and 538 of the Code of Virginia of 1887 forbade him to receive them, and the plaintiff averred that said sections are repugnant to section 10, art. 1 of the constitution of the United States, which the said Childrey well knew; that he (Childrey) obeyed the command of said sections, and declined to follow the mandate of the constitution; that by force of the statute law of Virginia the plaintiff would have been liable to indictment and severe penalties if he had proceeded to open and conduct his said business before he had satified the judge of the corporation or the hustings court of the city of Richmond that he was a fit person to conduct said business, that he would keep an orderly house, and that the place was a suitable one; and that the plaintiff could not apply to said court to enter on said inquiries until he presented to said court a receipt from said Childrey for said deposit indorsed on the certificate furnished by the commissioner of the revenue, or the certificate of the commissioner indorsed on the receipt of said Childrey. To this declaration the defendant filed a demurrer, which was sustained by the circuit court, and judgment rendered for the defendant, which judgment is brought here for review. The law under which the treasurer justified his action in refusing to receive the coupons tendered by the plaintiff is set forth in the declaration with sufficient accuracy and fullness for the disposal of the case, except that it should be added that the license fee to be deposited with the treasurer was required to be in lawful money of the United States as a condition precedent to the granting of the license. We are of opinion that the requirement that the license fee shall be paid in lawful money of the United States does not, as contended, impair the obligation of the contract made by the state with the holders of the coupons referred to. Licenses for the sale of intoxicating liquors are not only imposed for the purpose of raising revenue, but also for the purpose of regulating the traffic and consumption of these articles, and hence the state may impose such condictions for conducting said traffic as it may deem most for the public good. Instead of a license fee of $125, it might have imposed a license fee of $250, or any other amount, or it might have prohibited the sale of intoxicating liquors altogether, as is admitted by the counsel for the plaintiff in their brief. They concede that the state might, in her discretion, absolutely abolish the sale of spirituous liquors, or prescribe on what terms they shall be sold. In this view there does not seem to be any violation of the obligation of the state in requiring the tax which is imposed to be paid in any manner whatever,—in gold, in silver, in bank-notes, or in diamonds. The manner of payment is part of the condition of the license intended as a regulation of the traffic. It would be very different if the business sought to be followed was one of the ordinary pursuits of life, in which all persons are entitled to engage. License taxes imposed upon such pursuits and professions are imposed purely for the purpose of revenue, and not for the purpose of regulating the traffi or the pursuit. For these considerations, we are clearly of opinion that the judgment of the circuit court was right, and it is therefore affirmed. 8. The remaining case which we have to consider is that of Vashon v. Greenhow. This case arose upon the refusal of Greenhow, treasurer of the city of Richmond, to receive from Vashon tax-receivable coupons in payment, or part payment, of taxes due from him, including a certain amount due for school taxes for the maintenance of the public free schools of the state. Upon this refusal, Vashon filed a petition for a mandamus in the hustings court of the city of Richmond, stating that he was tax-payer of the said city, and was indebted to the state for state taxes of 1884 to the amount of $35.63, and tendered to Greenhow, the said treasurer, in payment therefor, certain coupons cut from the bonds of the state issued under the act of March 30, 1871,—one of the denomination of $30, and one of the denomination of $3, said coupons being past due, and being presented to the court with the petition; that he at the same time offered to pay the treasurer the whole of said tax in legal-tender notes and coin, and demanded that the treasurer receive said coupons, along with said legal-tender notes and coin, for the purpose of identification and verification in manner and form as required by the act of January 14, 1882. The petition further alleged that by virtue of the state's contract to receive said coupons in payment of said taxes, and by virtue of the act of assembly aforesaid, he was entitled, upon the payment of his said tax in money, to have his said couponsreceived for identification and verification, and pay his tax therewith, wherefore he prayed a writ of mandamus commanding said Greenhow, treasurer of said city, to receive the said money, and also the said coupons, and commanding his to forward said coupons to the court for identification and verification according to law. A rule to show cause having been granted, the treasurer filed his answer to the petition, in which he stated the truth to be that Vashon was indebted to the state for taxes for the year 1884, as follows, to-wit, for tax on property, the sum of $35.63, being $9.66 for the maintenance of public free schools, as per exhibit attached to the answer. He further stated and admitted that the petitioner offered to pay the said tax in money at the same time that he demanded the respondent to receive the coupons mentioned in the petition for the purpose of identification and verification. The answer then proceeds as follows: 'Your respondent avers that he was willing to receive the payment of sain tax in money, but refused to receive and recepit for so much of the coupons as were offered in payment of that portion of the tax set aside by law, and dedicated to the maintenance of the public free schools of the states. Your respondent assigns the following reasons for such refusal: (1) The constitution of Virginia provides in section 7 of article 8 what specific sums shall be set apart as a permanent and perpetual literary fund, and includes in it such other sums as the general assembly may appropriate; (2) section 8 of the same article provides that the general assembly shall apply the annual interest on the literary fund, and an annual tax upon the property of the state of not less than one mill nor more than five mills on the dollar, for the benefit of the public free schools; (3) in pursuance of this constitutional authority the general assembly has provided, in acts of 1883-84, p. 561, that on tracts of lands and lots a tax of ten cents on every hundred dollars of the assessed value thereof shall be levied, which shall be applied to the support of the public free schools of the state; (4) again, the last general assembly, in acts of 1883-84, p. 603, have provided that all taxes assessed on property, real or personal, and dedicated to the maintenance of the public free schools of the state, shall be paid and collected only in lawful money o th e United States, and shall be paid into the treasury to the credit of the free school fund, and shall be used for no other purpose whatsoever. Your respondent avers that to have forwarded such of the coupons as were offered in payment of the tax dedicated to the public free schools would have been a violation of the constitution, and the laws above referred to. For these reasons, your respondent insists that he ought not to have forwarded, for the purpose of identification and verification, so much of the coupons as were tendered in payment of that portion of the tax dedicated to the public free schools. He therefore prays that the writ of mandamus may be denied, and the petition dismissed, with costs.' To this answer the petitioner entered a demurrer, which was sustained by the court, and a peremptory mandamus was a warded pursuant to the prayer of the petition. The case being carried to the supreme court of appeals of Virginia the judgment was reversed, [Greenhow v. Vashon, 81 Va. 336,] and this judgment of reversal is now before us for review. The court of appeals placed their judgment upon two distinct grounds. In the first place, they reviewed the former judgments of that court, which had sustained the act of March 30, 1871, as a valid and constitutional enactment, and binding upon the state as a contract with the bond and coupon-holders under the same. The court were of opinion that these decisions were based upon a mistaken presumption that the state had received consideration for the issuing of the bond created by the act aforesaid. They argued, and attempted to show, that the state had not received any consideration whatever, but that the issuing of the bonds under the act of 1871 was a mere gratuity on the part of the state, and was not binding upon it so as to prevent the legislature from abrogating the conditions of that act. We have already indicated our views with regard to this position taken by the supreme court of appeals, and have referred to the decisions made by this court sustaining the validity of the act of 1871, which decisions of this court we regard as binding upon us. The other ground on which the court of appeals placed its decision was that the act of 1871, as applied to the moneys due and payable to the 'literary fund' or fund for the maintenance of public free schools, was contrary to the constitution of the state adopted in 1869. The seventh and eighth sections of the eighth article of that constitution declare as follows: 'Sec. 7. The general assembly shall set apart, as a permanent and perpetual literary fund, the present literary funds of the state, the proceeds of all public lands donated by congress for public school purposes, of all escheated property, of all waste and unappropriated lands, of all property accruing to the state by forfeiture, and all fines collected for offenses committed against the state, and such other sums as the general assembly may appropriate. Sec. 8. The general assembly shall apply the annual interest on the literary fund, the capitation tax provided for by this constitution for public free school purposes, and an annual tax upon the property of the state of not less than one mill nor more than five mills on the dollar, for the equal benefit of all the people of the state.' The court, in its opinion, held that in view of these constitutional provisions the legislature had no power to declare of contract that the moneys due to the literary fund might be paid in coupons attached to the bonds authorized by the act of 1871, and that such a payment would be repugnant to the very nature of the fund. It might well be added, that coupons thus paid into the fund would be of no value whatever to it; for, as soon as paid into the treasury, they would become valueless, as if canceled and destroyed, unless some provision were made for their reissue, and the putting of them into renewed circulation. This would be opposed to the whole tenor of the act, would be unjus to the coupon-holders themselvers, and would probably be contrary to the acts of congress in reference to the creation of paper currency. We think that the position of the court of appeals in this case is well taken,—that coupons could not be made receivable as a portion of the literary fund, and that, if they could not be received as a part of the fund, they could not properly be made receivable for the taxes laid for the purpose of main taining said fund. For several years after the constitution was adopted, and after the law of 1871 had been passed, the taxes for the benefit of free schools were mingled in the assessment and collection of taxes, and in the treasury when received, with the other taxes and funds raised for the support of the state government. As long as this state of things continued, the collecting officers could not object to receiving coupons in payment of taxes, because the share due to the school fund could easily be paid from the treasury, to the credit of that fund, out of the lawful moneys received. But by the tax act of March 15, 1884, it was provided that all taxes assessed on property, real or personal, by that act, and dedicated by it to the maintenance of the public free schools of the state, should be paid and collected only in the lawful money of the United States, and should be paid into the treasury to the credit of the free-school fund, and should be used for no other purpose whatsoever, and to this end the auditor of public accounts should have the books of the commissioner of the revenue prepared with reference to the separate assessment and collection of said school tax, and the several treasurers of the commonwealth should have the tax-bills in their counties and corporations so made out as to specify the amount of the tax due from each tax-payer to the public free school fund, including the capitation taxes of whatever kind or nature, and should keep said capitation tax and school tax separate and distinct from all other taxes or revenues so collected by him, and forward the same, thus separate and distinct, to the auditor of public accounts, which should be kept separate and distinct by him from all other taxes or revenues until paid to the public free schools. Since the passage of this act, and in pursuance thereof, the taxes and other revenues raised for the purpose of maintaining public schools, and belonging under the constitution to the literary fund, have been kept separate and distinct from the other taxes raised for the general support of the state government. This was the practice when the case of Vashon v. Greenhow arose; and in our judgment the law requiring the school tax to be paid in lawful money of the United States was a valid law, notwithstanding the provisions of the act of 1871, and that it was sustained by the sections of the constitution referred to, which antedate the law of 1871, and override any provisions therein which are repugnant thereto. In Paup v. Drew, 10 How. 218, a decision was made by this court in a case not very different in principle from the one now under consideration. It had been decided in Woodruff v. Trapnall, 10 How. 190, at about the same time, that the law of Arkansas which chartered the Bank of the State of Arkansas, (the whole capital of which belonged to the state,) provided that the bills and notes of said institution should be received in all payments of debts due to the state, was valid and irrepealable, and that, although this provision was subsequently in terms repealed, the notes of the bank which were in circulation at the time of the repeal were not affected by it, and that the undertaking of the state to receive the notes of the bank constituted a contract between the state and the holders of these notes which the state was not at liberty to break or impair, although notes issued by the bank after the repeal were not within the contract, and might be refused. After this decision the case of Paup v. Drew came up, in which it was held that, although the notes of the bank wer re ceivable in payment of all debts due to the state in its own right, and could not be refused, yet, where the state sold lands which were held by it in trust for the benefit of a seminary, and the terms of the sale were that the debtor should payin specie or its equivalent, such debtor was not at liberty to tender the notes of the bank in payment. The question arose in this way: Congress in 1827 had passed an act 'concerning a seminary of learning in the territory of Arkansas,' by which two entire townships of land were directed to be set aside and reserved from sale, out of the public lands within the said territory, for the use and support of a university within the said territory. In 1836 congress passed another act entitled 'An act supplementary to the act entitled 'An act for the admission of the state of Arkansas into the Union, and to provide for the due execution of the laws of the United States within the same, and for other purposes," by which last act the lands so reserved for the use and support of a university were vested in the state of Arkansas. On the 28th of December, 1840, the legislature of Arkansas passed an act entitled 'An act to authorize the governor to dispose of the seminary lands;' and in 1842 the then governor of the state sold to John W. Paup the right to enter and locate 640 acres of said land, and received from him therefor bonds payable at different dates in specie or its equivalent. In 1847 the governor of the state brought a suit upon these bonds, and the defendants brought into court the sum of $6,050 in notes of the Bank of the State of Arkansas, and pleaded a tender of the same in discharge of the debt. The plaintiff demurred on the ground that the proceeds of the bonds were part of a trust fund committed to the state by congress for special purposes, over which the state had no power except to collect and disburse the same in pursuance of the objects of the grant, and the state had no power to apply said funds to the payment of ordinary liabilities, and was not bound to accept in payment of such bonds any depreciated bills, bank paper, or issues, even though she might be ultimately liable to redeem them. This demurrer was sustained, and judgment given that the fund was a trust fund held by the state of Arkansas for the purposes to which it was devoted, and therefore the state could not properly contract to receive other than lawful money for property disposed of belonging to said fund. We think that the principle of this case sustains the decision of the court of appeals of Virginia in the case now under consideration, and the judgment of that court is affirmed. It may be argued that the principle involved in the last case is equally applicable to all taxes raised for the support of the state government, inasmuch as the funds necessary for that purpose, as well as those raised for the purpose of maintaining public free schools, are required to be paid in cash. But there is this difference: that the tax for school purposes is set apart for that specific use, under the express requirement of the constitution, while the general tax for carrying on the government is, or should be, adequate to meet not only the actual expenses of the government itself, but also the outstanding debts and obligations that may be due and payable during the fiscal year, of which the coupons are themselves a part. If the tender of tax-receiving coupons to any considerable amount is apprehended, the rate of taxation should be raised so as to produce a sufficient surplus over and above such coupons to meet the expenses of the government. If the influx of coupons should be so uncertain that so safe calculation could be made on the subject, an arrangement could probably be made with the couponholders for limiting the proportion of tax which would be received in coupons. It is certainly to be wished that some arrangement may be adopted which will be satisfactory to all the parties concerned, and relieve the courts, as well as the common welth of Virginia, whose name and history recall so many interesting associations, from all further exhibitions of a controversy that has become a vexation and a regret.
132.US.34	The statutes of the State of Texas of July 14, 1879, and March 11, 1881, providing for the sale of a portion of the vacant and unappropriated public lands of the State, did not operate to confer upon a person making application under them for a survey of part of said lands and paying the fees for filing and recording the same, a vested interest in such lands -which could not be impaired by the subsequent withdrawal of them from sale under the provisions of the statute of January 22, 1883. THE case was thus stated by the court in its opinion	It was contended in the state courts, and the contention is renewed here, that the petitioner, by his application for a survey, had acquired a vested interest in the lands he desired to purchase, which could not be impaired by their subsequent withdrawal from sale. This position is clearly untenable. The application was only one of different steps, all of which were necessary to be performed before the applicant could acquire any right against the state. The application was to be followed by a survey, and the survey or was allowed three months in which to make it. By the express terms of the act, it was only after the return and filing in the general land-office of the surveyor's certificate, map, and field-notes of the survey that the applicant acquired the right to purchase the land by paying the purchase money within 60 days thereafter. But for this declaration of the act, we might doubt whether a right to purchase could be considered as conferred by the mere survey so as to bind the state. Clearly, there was no such right in advance of the survey. The state was under no obligation to continue the law in force because of the application of any one to purchase. It entered into no such contract with the public. The application did not bind the applicant to proceed any further in the matter; nor, in the absence of other proceedings, could it bind the state to sell the lands. The adjudications are numerous where the with drawal from sale by the government of lands previously opened to sale has been adjudged to put an end to proceedings instituted for their acquisition. Thus, under the preemption laws of the United States, large portions of the public domain are opened to settlement and sale, and parties having the requisite qualifications are allowed to acquire the title to tracts of a specific amount by occupation and improvement, and their entry at the appropriate land-of-fice, and payment of the prescribed price. But it has always been held that occupation and improvement of the tracts desired, with a view to pre-emption, though absolutely essential for that purpose, do not confer upon the settler any right in the land occupied, as against the United States, which could impair in any respect the power of congress to withdraw the land from sale for the uses of the government, or to dispose of the same to other parties. This subject was fully considered in Frisbie v. Whitney, 9 Wall. 187, where this doctrine was announced. It was subsequently affirmed in the Yosemite Valley Case, 15 Wall. 77, where the court said that, until all the preliminary steps prescribed by law for the acquisition of the property were complied with, the settler did not obtain any title against the United States, and that among these were entry of the land at the appropriate land-office, and payment of its price. 'Until such payment and entry,' the court said, 'the acts of congress give to the settler only a privilege of pre-emption in case the lands are offered for sale in the usual manner; that is, the privilege to purchase them in that event in preference to others. The United States, by those acts, enter into no contract with the settler, and incur no obligation to any one that the land occupied by him shall ever be put up for sale. They simply declare that, in case any of their lands are thrown open for sale, the privilege to purchase them in limited quantities, at fixed prices, shall be first given to parties who have settled upon and improved them.' In the present case, before the act withdrawing the lands from sale, which was equivalent to a repeal of the act authorizing the sale, could be held to impair any vested right of the applicant, he must have done everything required by law to secure such right. Until then, no contract could arise in any way binding upon the state. No contract rights of the petitioner were therefore violated by its legislation. The law in this respect is very clearly stated in the opinion of the commissioner of appeals of Texas, adopted by the supreme court of that state. Judgment affirmed.
129.US.178	It being plain that the decision m the court below, adverse to the plaintiffs in error, was made upon the principles of laches and estoppel, and that there was no decision against a right, title, privilege or immunity, claimed under the Constitution, or any statute of, or authority exercised under, the United States, no Federal question is involved, and this court is without jurisdiction. If the highest court of a State, proceeding upon the principles of general law only errs in the rendition of a judgment or decree affecting property, this does not deprive the party to the suit of his property without due process of law.	In 1870 certain suits were pending in the circuit court of the county of Elizabeth City, Va., brought by judgment creditors of one Parker West, to subject his lands to the satisfaction of their judgments, under the provisions of chapter 182 of the Code of 1873, authorizing sale of the judgment debtor's lands when it appeared that the rents and profits for five years would be insufficient to discharge the liens against them. These causes were consolidated, and proceeded to decree in September, 1870, for an account of all the real estate of said West, its annual value, and the liens thereon, under which a report was made by a commissioner showing the judgments against West, and the lands belonging to him, and their annual and fee-simple value, and that the rents and profits would not satisfy the liens in five years, which report was confirmed by decree entered May 4, 1871, which also appointed special commissioners to sell said lands, including 'all the interest of Parker West in that certain tract of land known as 'Newport News,' containing 300 acres,' etc. This land had been sold June 30, 1864, upon proceedings against West under the confiscation act of July 17, 1862, and a deed had been executed and delivered to the purchasers, February 15, 1865. No such proceedings had taken place in reference to other lands of West involved in the litigation, and one of the judgments counted on had been recovered as early as 1861. West died in December, 1871, and on the 4th of May, 1872, the following decree was entered in said consolidated cause: 'The death of Parker West being suggested, on the motion of William P. Marrow and Mary E., his wife, Elizabeth R. West, George B. West, and M. Smith and Missouri, his wife, the said Mary E. Marrow, Elizabeth R. West, G. B. West, and Missouri Smith being the heirs at law of the said Parker West, to be made parties defendant to these causes, the said William P. Marrow and M. E., his wife, E. R. West, G. B. West, and M. Smith and Missouri, his wife, are hereby made parties defendant to these causes, with leave to file their answers. This cause then this day again came on to be heard on the papers formerly read, and on the report of special commissioners, C. K. Mallory, Thomas Tabb, and G. M. Peek, of the sales made by them under a former decree in these causes, to which report no exceptions have been filed, and was argued by counsel; on consideration whereof the court doth adjudge, order, and decree that the said report, and the sales reported therein, be, and the same are hereby, confirmed.' The sale of a portion of the Newport News land in controversy here was confirmed by that decree, and the sale of the remainder was made thereafter, and reported to the court, and the sale confirmed in October, 1872. In January, 1886, W. P. Marrow and Mary E., his wife, George B. West, and Missouri Smith filed their bill of complaint in the state circuit court, seeking to set aside the decrees of May 4, 1871, and May 4, 1872, and the deeds which had been made to purchasers of lands thereunder; insisting that West's title had been divested by the confiscation proceedings, and alleging that they never appeared in said consolidated causes in person, or employed any attorney at law to represent them, and that no process was ever served upon them, and charging fraud in the entry of their appearance. Upon the final hearing their bill was dismissed, and they prosecuted an appeal to the supreme court of appeals of Virginia, which court affirmed the decree of the court below; holding that, as between the heirs and the purchasers, the former were bound by the recitals of the decree of May 4, 1872; and that upon the evidence aliunde the record the heirs were estopped by laches and by conduct to claim title as against the purchasers who were such in good faith, for value and without notice. 6 S. E. Rep. 605. The complainants filed a petition for rehearing in the court of appeals, in which they stated 'that on the 17th day of May, 1888, in the above-entitled cause, a decree was entered simply affirming the decree of the lower court entered on the 26th day of October, 1886, dismissing the bill of the plaintiffs below for reasons stated in the opinion of the court. The reasons stated are based upon the equitable doctrine of estoppel in pais and innocent purchaser for value, without notice, the language of the opinion upon these points being as follows: (a) 'Having kept a sinister silence when they should have spoken with candor and courage, equity now closes her door, and leaves them to obtain from a court of law what they can.' (b) 'That as against an innocent purchaser for value, without notice, a court of equity is without jurisdiction, and will refuse to give any assistance whatever, leaving the party to enforce his technical rights at law." The rehearing was denied, and the writ of error sued out of this court; a motion to dismiss which is now before us. In the petition for the allowance of this writ it is said that the final judgment of the court of appeals against plaintiffs in error was rendered in a suit 'wherein was drawn in question a right, title, privilege and immunity to real estate arising upon the construction of the act of congress of the United States approved July 17, 1862, entitled 'An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,' and the joint resolution passed concurrently therewith, and the decision is against the right, title, privilege, and immunity claimed under the said statute.' We do not so understand this record. Conceding that West's title to the particular lands had been divested by the sale under the confiscation proceedings, and that the interest of the heirs remained unaffected thereby, yet, if they were concluded under the circumstances by the decree of May, 1872, or upon the principles of estoppel and laches, that disposed of their case adversely to them; and it was upon these grounds that the Virginia courts proceeded, and not upon any decision against a right, title, privilege, and immunity claimed under the constitution, or any statute of, or authority exercised under, the United States. It was only if the decision had been otherwise upon these points that any question could have arisen as to the validity of the confiscation act and resolution, and the proceedings thereunder. Unless it appears affirmatively that the decision of a federal question was necessary to the determination of the cause, and that it was actually decided, or that the judgment as rendered could not have been given without deciding it, this court has no jurisdiction of a writ of error to a state court. In this case the judgment, as rendered, involved the decision of no such question, and none such was actually decided. Nor can jurisdiction be retained upon the suggestion, made for the first time in this court, that if the court of appeals, proceeding upon the principles of general law only, were found to have erred in the rendition of its decree, the state of Virginia had thereby deprived the plaintiffs in error of their property without due process. The writ of error is dismissed.
129.US.397	A decree of the Circuit Court in admiralty on the instance side, finding negligence in the stranding of a ship, can be reviewed by tis court so far only as it involves a question of law. The owner of a general ship, carrying goods for hire on an ocean voyage, is a common carrier. A common carrier by sea cannot, by any stipulation with a shipper of goods, exempt himself from all responsibility for loss or damage by perils of the sea, arising froju negligence of the officers or crew. Upon a question of the effect of a stipulation exempting a common carrier from responsibility for negligence of his servants, the courts of the United States are not bound by decisions of the courts of the State in which the contract is made. The general maritime law is in force in this country so far only as it has been adopted by the laws or usages thereof. The law of Great Britain since the Declaration of Independence is a foreign law, of which a court of the United States cannot take notice, unless it is pleaded and proved. The law of the place where a contract is made governs its nature, obligation and interpretation, unless it appears that the parties, when entering into the contract, intended to be bound by the law of some other country. A contract of affreightment, made in an American port by an American shipper with an English steamship company doing business there, for the shipment of goods there and their carriage to and delivery in England, where the freight is payable in English currency is an American contract, and governed by American law so far as regards the effect of a stipulation exempting the company from responsibility for the negligence of its servants in the course qf the voyage. An insurer of goods, upon paying to the assured the amount of a loss, total or partial, becomes, without any formal assignment, or any express stipulation to that effect in the policy, subrogated in a corresponding amount to the assured's right of action against the carrier, and may assert that right in his own name in a court of admiralty. In a through bill of lading for carriage from an inland city in the United States, by a railroad company and its connections, and a steamship company, to an English port, signed by an agent of the companies, "severally, but not jointly," and containing two separate and distinct sets of terms and conditions, the one relating to the land carriage, and the other to tht ocean transportation, a stipulation, inserted m the first set only that in case of loss that company alone shall be answerable in whose actual custody the goods are at the time, "and the carrier so liable shall have the full benefit of any insurance effected upon the goods," gives the steamship company no right to the benefit of any insurance.	This is an appeal by a steamship company from a decree rendered against it upon a libel in admiralty, 'in a cause of action arising from breach of contract,' brought by an insurance company, claiming to be subrogated to the rights of the owners of goods shipped on board the Montana, one of the appellant's steam-ships, at New York, to be carried to Liverpool, and lost or damaged by her stranding, because of the negligence of her master and officers, in Holyhead bay, on the coast of Wales, before reaching her destination. In behalf of the appellant, it was contended that the loss was caused by perils of the sea, without any negligence on the part of master and officers; that the appellant was not a common carrier; that it was exempt from liability by the terms of the bills of lading; and that the libelant had not been subrogated to the rights of the owners of the goods. It is to be remembered that the jurisdiction of this court to review the decree below is limited to questions of law, and does not extend to questions of fact. Act Feb. 16, 1875, c. 77, § 1, 18 St. 315; The Gazelle, 128 U. S. 474, 484, 9 S.Ct. 139, and cases there cited. In the findings of fact the circuit court, after stating, in much detail, the course of the ship's voyage, the conduct of her master and officers, the position and character of the various lighthouses and other safeguards which she passed, and other attendant circumstances immediately preceding the stranding, distinctly finds as facts: 'Those in charge of the navigation of the Montana were negligent, in that, without having taken cross-bearings of the light at South Stack, and so determined their distance from the light, they took an east three-quarters south course before passing the Skerries, and without seeing the Skerries light; and in that they continued at full speed after hearing the fog-gun at North Stack; and in that they took a north-east by east magnetic course on hearing said fog-gun, instead of stopping and backing and taking a westerly course out of Holyhead bay; and in that they did not ascertain their position in Holyhead bay by means of the lights and fog-signals, or by the use of the lead, or by stopping until they should, by those means or otherwise, learn where their ship was.' 'On the foregoing facts,' the only conclusion of law stated by the circuit court (except those affecting the right of subrogation and the amount to be recovered) is in these words: 'The stranding of the Montana, and the consequent damage to her cargo, having been the direct result of the negligence of the master and officers of the steamer, the respondent is liable therefor.' Negligence is not here stated as a conclusion of law, but assumed as a fact already found. The conclusion of law is, in effect, that, such being the fact, the respondent is liable, notwithstanding any clause in the bills of lading. The question of negligence is fully and satisfactorily discussed in the opinion of the district court reported in 17 Fed. Rep. 377, and in that of the circuit court, reported in 22 Blatchf. 372, 22 Fed. Rep. 715. It is largely, if not wholly, a question of fact, the decision of which by the circuit court cannot be reviewed here; and, so far as it can possibly be held to be or to involve a question of law, it is sufficient to say that the circumstances of the case, as found by the circuit court, clearly warrant, if they do not require, a court or jury, charged with the duty of determining issues of fact, to find that the stranding was owing to the negligence of the officers of the ship. The contention that the appellant is not a common carrier may also be shortly disposed of. By the settled law, in the absence of some valid agreement to the contrary, the owner of a general ship, carrying goods for hire, whether employed in internal, in coasting, or in foreign commerce, is a common carrier, with the liability of an insurer against all losses, except only from such irresistible causes as the act of God and public enemies. Moll. De J. Mar. bk. 2, c. 2, § 2; 2 Bac. Abr. 'Carrier,' A; Barclay v. Cucullav Gana, 3 Doug. 389; 2 Kent, Comm. 598, 599; Story, Bailm. § 501; The Niagara, 21 How. 7, 23; The Lady Pike, 21 Wall. 1, 14. In the present case the circuit court has found as facts: 'The Montana was an ocean steamer, built of iron, and performed regular service as a common carrier of merchandise and passengers between the ports of Liverpool, England, and New York, in the line commonly known as the 'Guion Line.' By her, and by other ships in that line, the respondent was such common carrier. On March 2, 1880, the Montana left the port of New York, on one of her regular voyages, bound for Liverpool, England, with a full cargo, consisting of about twenty-four hundred tons of merchandise, and with passengers.' The bills of lading, annexed to the answer and to the findings of fact, show that the four shipments in question amounted to less than 130 tons, or hardly more than one-twentieth part of the whole cargo. It is clear, therefore, upon this record, that the appellant is a common carrier, and liable as such, unless exempted by some clause in the bills of lading. In each of the bills of lading, the excepted perils, for loss or damage from which it is stipulated that the appellant shall not be responsible, include 'barratry of master or mariners,' and all perils of the seas, rivers, or navigation, described more particularly in one of the bills of lading as 'collision, stranding, or other peril of the seas, rivers, or navigation, of whatever nature or kind soever, and howsoever such collision, stranding, or other peril may be caused,' and in the other three bills of ading described more generally as any 'accidents of the seas, rivers, and steam navigation, of whatever nature or kind soever;' and each bill of lading adds, in the following words in the one, and in equivalent words in the others, 'whether arising from the negligence, default, or error in judgment of the master, mariners, engineers, or others of the crew, or otherwise howsoever.' If the bills of lading had not contained the clause last quoted, it is quite clear that the other clauses would not have relieved the appellant from liability for the damage to the goods from the stranding of the ship through the negligence of her officers. Collision or stranding is, doubtless, a peril of the seas; and a policy of insurance against perils of the seas covers a loss by stranding or collision, the seas covers a loss by stranding or collision, the master or crew, because the insurer assumes to indemnify the assured against losses from particular perils, and the assured does not warrant that his servants shall use due care to avoid them. Insurance Co. v. Sherwood, 14 How. 351, 364, 365; Insurance Co. v. Adams, 123 U. S. 67, 73, 8 Sup. Ct. Rep. 68; Copeland v. Insurance Co., 2 Metc. 432, 448-450. But the ordinary contract of a carrier does involve an obligation on his part to use due care and skill in navigating the vessel and carrying the goods; and, as is everywhere held, an exception, in the bill of lading, of perils of the sea or other specified perils does not excuse him from that obligation, or exempt him from liability for loss or damage from one of those perils to which the negligence of himself or his servants has contributed. Navigation Co. v. Bank, 6 How. 344, Express Co. v. Kountze, 8 Wall. 342; Transportation Co. v. Downer, 11 Wall. 129; Grill v. Screw Co., L. R. 1 C. P. 600, and L. R. 3 C. P. 476; The Xantho, L. R. 12 App. Cas. 503, 510, 515. We are then brought to the consideration of the principal question in the case, namely, the validity and effect of that clause in each bill of lading by which the appellant undertook to exempt itself from all responsibility for loss or damage by perils of the sea, arising from negligence of the master and crew of the ship. This question appears to us to be substantially determined by the judgment of this court in Railroad Co. v. Lockwood, 17 Wall. 357. That case, indeed, differed in its facts from the case at bar. It was an action brought against a railroad corporation by a drover who, while being carried with his cattle on one of its trains under an agreement which it had required him to sign, and by which he was to pay certain rates for the carriage of the cattle, to pass free himself, and to take the risks of all injuries to himself or to them, was injured by the negligence of the defendant or its servants. The judgment for the plaintiff, however, was not rested upon the form of the agreement, or upon any difference between railroad corporations and other carriers, or between carriers by land and carriers by sea, or nbetween carriers of passengers and carriers of goods, but upon the broad ground that no public carrier is permitted by law to stipulate for an exemption from the consequences of the negligence of himself or his servants. The very question there at issue, defined at the baginning of the opinion as 'whether a railroad company, carrying passengers for hire, can lawfully stipulate not to be answerable for their own or their servants' negligence in reference to such carriage,' was stated a little further on in more general terms as 'the question before propounded, namely, whether common carriers may excuse themselves from liability for negligence;' and a negative answer to the question thus stated was a necessary link in the logical chain of conclusions announced at the end of the opinion as constituting the ratio decidedi. 17 Wall. 359, 363, 384. The course of reasoning, supported by elaborate argument and illustration, and by copious references to authorities, by which those conclusions were reached, may be summed up as follows: By the common law of England and America before the declaration of independence, recognized by the weight of English authority for half a century afterwards, and upheld by decisions of the highest courts of many states of the Union, common carriers could not stipulate for immunity for their own or their servants' negligence. The English railway and canal traffic act of 1854, declaring void all notices and conditions made by those classes of common carriers, except such as should be held by the court or judge before whom the case should be tried to be just and reasonable, was substantially a return to the rule of the common law. The only important modification by the congress of the United States of the previously existing law on this subject is the act of 1851, to limit the liability of ship-owners, (act March 3, 1851, c. 43, 9 St. 635; Rev. St. §§ 4282-4289,) and that act leaves them liable without limit for their own negligence, and liable to the extent of the ship and freight for the negligence or misconduct of the master and crew. The employment of a common carrier is a public one, charging him with the duty of accommodating the public in the line of his employment. A common carrier is such by virtue of his occupation, not by virtue of the responsibilities under which he rests. Even if the extent of those responsibilities is restricted by law or by contract, the nature of his occupation makes him a common carrier still. A common carrier may become a private carrier, or a bailee for hire, when, as a matter of accommodation or special engagement, he undertakes to carry something which it is not his business to carry. But when a carrier has a regularly established business for carrying all or certain articles, and especially if that carrier is a corporation created for the purpose of the carrying trade, and the carriage of the articles is embraced within the scope of its chartered powers, it is a common carrier, and a special contract about its responsibility does not divest it of that character. The fundamental principle upon which the law of common carriers was established was to secure the utmost care and diligence in the performance of their duties. That end was effected in regard to goods, by charging the common carrier as an insurer, and in regard to passengers, by exacting the highest degree of carefulness and diligence. A carrier who stipulates not to be bound to the exercise of care and diligence seeks to put off the essential duties of his employment. Nor can those duties be waived in respect to his agents or servants, especially where the carrier is an artificial being, incapable of acting except by agents and servants. The law demands of the carrier carefulness and diligence in performing the service; not merely an abstract carefulness and diligence in proprietors and stockholders who take no active part in the business. To admit such a distinction in the law of common carriers, as the business is now carried on, would be subversive of the very object of the law. The carrier and his customer do not stand upon a footing of equality. The individual customer has no real freedom of choice. He cannot afford to higgle or stand out, and seek redress in the courts. He prefers rather to accept any bill of lading, or to sign any paper, that the carrier presents, and in most cases he has no alternative but to do this, or to abandon his business. Special contracts between the carrier and the customer, the terms of which are just and reasonable, and not contrary to public policy, are upheld; such as those exempting the carrier from responsibility for losses happening from accident, or from dangers of navigation that no human skill or diligence can guard against; or for money or other valuable articles, liable to be stolen or damaged, unless informed of their character or value; or for perishable articles or live animals, when injured without default or negligence of the carrier. But the law does not allow a public carrier to abandon altogether his obligations to the public, and to stipulate for exemptions which are unreasonable and improper, amounting to an abnegation of the essential duties of his employment. It being against the policy of the law to allow stipulations which will relieve the railroad company from the exercise of care or diligence, or which, in other words, will excuse it for negligence in the performance of its duty, the company remains liable for such negligence. This analysis of the opinion in Railroad Co. v. Lockwood shows that it affirms and rests upon the doctrine that an express stipulation by any common carrier for hire, in a contract of carriage, that he shall be exempt from liability for losses caused by the negligence of himself or his servants, is unreasonable and contrary to public policy, and consequently void. And such has always been the understanding of this court, expressed in several later cases. Express Co. v. Caldwell, 21 Wall. 264, 268; Railroad Co. v. Pratt, 22 Wall. 123, 134; Bank v. Express Co., 93 U. S. 174, 183; Railway Co. v. Stevens, 95 U. S. 655; Hart v. Railroad Co., 112 U. S. 331, 338, 5 Sup. Ct. Rep. 151; Insurance Co. v. Transportation Co., 117 U. S. 312, 322, 6 Sup. Ct. Rep. 750, 1176; Inman v. Railway Co., 129 U. S. 128, ante, 249. The general doctrine is nowhere stated more explicitly than in Hart v. Railroad Co. and Insurance Co. v. Transportation Co., just cited, and there does not appear to us to be anything in the decision or opinion in either of those cases which supports the appellant's position. In the one case, a contract fairly made between a railroad company and the owner of the goods, and signed by the latter, by which he was to pay a rate of freight based on the condition that the company assumed liability only to the extent of an agreed valuation of the goods, even in case of loss or damage by its negligence, was upheld as just and reasonable, because a proper and lawful mode of securing a due proportion between the amount for which the carrier might be responsible and the compensation which he received, and of protecting himself against extravagant or fanciful valuations, which is quite different from exempting himself from all responsibility whatever for the negligence of himself and his servants. In the other, the decision was that, as a common carrier might lawfully obtain from a third person insurance on the goods carried against loss by the usual perils, though occasioned by negligence of the carrier's servants, a stipulation in a bill of lading that the carrier, when liable for the loss, should have the benefit of any insurance effected on the goods, was valid as between the carrier and the shipper, even when the negligence of the carrier's servants was the cause of the loss. Upholding an agreement by which the carrier receives the benefit of any insurance obtained by the shipper from a third person is quite different from permitting the carrier to compel the shipper to obtain insurance, or to stand his own insurer, against negligence on the part of the carrier. It was argued for the appellant that the law of New York, the lex loci contractus, was settled by recent decisions of the court of appeals of that state in favor of the right of a carrier of goods or passengers, by land or water, to stipulate for exemption from all liability for his own negligence. Mynard v. Railroad Co., 71 N. Y. 180; Spinetti v. Steamship Co., 80 N. Y. 71. But on this subject, as on any question depending upon mercantile law and not upon local statute or usage, it is well settled that the courts of the United States are not bound by decisions of the courts of the state, but will exercise their own judgment, even when their jurisdiction attaches only be reason of the citizenship of the parties, in an action at law of which the courts of the state have concurrent jurisdiction, and upon a contract made and to be performed within the state. Railroad Co. v. Lockwood, 17 Wall. 357, 368; Myrick v. Railroad Co., 107 U. S. 102, 1 Sup. Ct. Rep. 425; Carpenter v. Insurance Co., 16 Pet. 495, 511; Swift v. Tyson, Id. 1; Railroad Co. v. Bank, 102 U. S. 14; Burgess v. Seligman, 107 U. S. 20, 33, 2 Sup. Ct. Rep. 10; Smith v. Alabama, 124 U. S. 465, 478, 8 Sup. Ct. Rep. 564; Bucher v. Railroad Co., 125 U. S. 555, 583, 8 Sup. Ct. Rep. 974. The decisions of the state courts certainly cannot be allowed any greater weight in the federal courts when exercising the admiralty and maritime jurisdiction exclusively vested in them by the constitution of the United States. It was also argued in behalf of the appellant that the validity and effect of this contract, to be performed principally upon the high seas, should be governed by the general maritime law, and that by that law such stipulations are valid. To this argument there are two answers: First. There is not shown to be any such general maritime law. The industry of the learned counsel for the appellant has collected articles of codes, decisions of courts, and opinion of commentators in France, Italy, Germany, and Holland, tending to show that, by the law administered in those countries, such a stipulation would be valid. But those decisions and opinions do not appear to have been based on general maritime law, but largely, if not wholly, upon provisions or omissions in the codes of the particular country, and it has been said by many jurists that the law of France, at least, was otherwise. See 2 Pard. Droit Com. No. 542; 4 Goujet & Meyer Dict. Droit Com. (2d Ed.) Voiturier, Nos. 1, 81; 2 Troplong Droit Civil, Nos. 894, 910, 942, and other books cited in Navigation Co. v. Shand, 3 Moore, P. C. (N. S.) 272, 278, 285, 286; 25 Laurent Droit Civil Francais, No. 532; MELLISH, L. J., in Cohen v. Railway Co., L. R. 2 Exch. Div. 253, 257. Secind. The general maritime law is in force in this country, or in any other, so far only as it has been adopted by the laws or usages thereof; and no rule of the general maritime law (if any exists) concerning the validity of such a stipulation as that now before us has ever been adopted in the United States or in England, or recognized in the admiralty courts of either. The Lottawanna, 21 Wall. 558; The Scotland, 105 U. S. 24, 29, 33; The Belgenland, 114 U. S. 355, 369, 5 Sup. Ct. Rep. 860; The Harrisburg, 119 U. S. 199, 7 Sup. Ct. Rep. 140; The Hamburg, 2 Moore, P. C. (N. S.) 289, 319, Brown. & L. 253, 272; Lloyd v. Guibert, L. R. 1 Q. B. 115, 123, 124, 6 Best & S. 100, 134, 136; The Gaetano, L. R. 7 Prob. Div. 137, 143. It was argued in this court, as it had been below, that as the contract was to be chiefly performed on board of a British vessel, and to be finally completed in Great Britain, and the damage occurred in Great Britain, the case should be determined by the British law, and that by that law the clause exempting the appellant from liability for losses occasioned by the negligence of its servants was valid. The circuit court declined to yield to this argument, upon two grounds: (1) That as the answer expressly admitted the jurisdiction of the circuit court asserted in the libel, and the law of Great Britain had not been set up in the answer nor proved as a fact, the case must be decided according to the law of the federal courts as a question of general commercial law; (2) that there was nothing in the contracts of affreightment to indicate a contracting in view of any other law than the recognized law of such forum in the United States as should have cognizance of suits on the contracts. 22 Blatchf. 397, 22 Fed. Rep. 728. The law of Great Britain since the declaration of independence is the law of a foreign country, and, like any other foreign law, is matter of fact, which the courts of this country cannot be presumed to be acquainted with, or to have judicial knowledge of, unless it is pleaded and proved. The rule that the courts of one country cannot take cognizance of the law of another without plea and proof has been constantly maintained, at law and in equity, in England and America. Church v. Hubbart, 2 Cranch, 187, 236; Ennis v. Smith, 14 How. 400, 426, 427; Dainese v. Hale, 91 U. S. 13, 20, 21; Pierce v. Indseth, 106 U. S. 546, 1 Sup. Ct. Rep. 418; Ex parte Cridland, 3 Ves. & B. 94, 99; Lloyd v. Guibert, L. R. 1 Q. B. 115, 129, 6 Best & S. 100, 142. In the case last cited, Mr. Justice WILLES, delivering judgment in the exchequer chamber, said: 'In order to preclude all misapprehension, it may be well to add that a party who relies upon a right or an exemption by foreign law is bound to bring such law properly before the court, and to establish it in proof. Otherwise the court, not being entitled to notice such law without judicial proof, must proceed according to the law of England.' The decision in Lamar v. Micou, 112 U. S. 452, 5 Sup. Ct. Rep. 221, and 114 U. S. 218, 5 Sup. Ct. Rep. 857, did not in the least qualify this rule, but only applied the settled doctrine that the circuit courts of the United States, and this court on appeal from their decisions, take judicial notice of the laws of the several states of the Union as domestic laws; and it has since been adjudged, in accordance with the general rule as to foreign law, that this court, upon writ of error to the highest court of a state, does not take judicial notice of the law of another state, not proved in that court and made part of the record sent up, unless by the local law that court takes judicial notice of it. Hanley v. Donoghue, 116 U. S. 1, 6 Sup. Ct. Rep. 242; Renaud v. Abbott, 116 U. S. 277, 285, 6 Sup. Ct. Rep. 1194. The rule is as well established in courts of admiralty as in courts of common law or courts of equity. Chief Justice MARSHALL, delivering judgment in the earliest admiralty appeal in which he took part, said: 'That the laws of a foreign nation, designed only for the direction of its own affairs, are not to be noticed by the courts of other countries, unless proved as facts, and that this court, with respect to facts, is limited to the statement made in the court below, cannot be questioned.' Talbot v. Seeman, 1 Cranch, 1, 38. And in a recent case in admiralty, Mr. Justice BRADLEY said: 'If a collision should occur in British waters, at least between British ships, and the injured party should seek relief in our courts, we would administer justice according to the British law, so far as the rights and liabilities of the parties were concerned, provided it were shown what that law was. If not shown, we would apply our own law to the case. In the French or Dutch tribunals they would do the same.' The Scotland, 105 U. S. 24, 29. So Sir WILLIAM SCOTT, in the high court of admiralty, said: 'Upon all principles of common jurisprudence, foreign law is always to be proved as a fact.' Le Louis, 2 Dod. 210, 241. To the same effect are the judgments of the judicial committee of the privy council in The Prince George, 4 Moore, P. C. 21, and The Peerless, 13 Moore, P. C. 484. And in a more recent case, cited by the appellant, Sir ROBERT PHILLIMORE said: 'I have no doubt whatever that those who rely upon the difference between the foreign law and the law of the forum in which the case is brought are bound to establish that difference by competent evidence.' The Duero, L. R. 2 Adm. & Ecc. 393, 397. It was therefore rightly held by the circuit court, upon the pleadings and proofs upon which the case had been argued, that the question whether the British law differed from our own was not open. But it appears by the supplemental record, certified to this court in obedience to a writ of certiorari, that after the circuit court had delivered its opinion and filed its findings of fact and conclusions of law, and before the entry of a final decree, the appellant moved for leave to amend the answer by averring the existence of the British law, and its applicability to this case, and to prove that law; and that the motion was denied by the circuit court, because the proposed allegation did not set up any fact unknown to the appellant at the time of filing the original answer, and could not be allowed under the rules of that court. 22 Blatchf. 402-404, 22 Fed. Rep. 730. On such a question we should be slow to overrule a decision of the circuit court. But we are not prepared to say that if, upon full consideration, justice should appear to require it, we might not do so, and order the case to be remanded to that court, with directions to allow the answer to be amended and proof of the foreign law to be introduced. The Adeline, 9 Cranch, 244, 284; The Marianna Flora, 11 Wheat. 1, 38; The Charles Morgan, 115 U. S. 69, 5 Sup. Ct. Rep. 1172; Insurance Co. v. Allen, 121 U. S. 67, 7 Sup. Ct. Rep. 821; The Gazelle, 128 U.S. 474, 9 S.Ct. 139. And the question of the effect which the law of Great Britain, if duly alleged and proved, should have upon this case has been fully and ably argued. Under these circumstances, we prefer not to rest our judgment upon technical grounds of pleading or evidence, but, taking the same course as in Insurance Co. v. Allen, just cited, proceed to consider the question of the effect of the proof offered, if admitted. It appears by the cases cited in behalf of the appellant, and is hardly denied by the appellee, that under the existing law of Great Britain, as declared by the latest decisions of her courts, common carriers, by land or sea, except so far as they are controlled by the provisions of the railway and canal traffic act of 1854, are permitted to exempt themselves by express contract from responsibility for losses occasioned by negligence of their servants. The Duero, L. R. 2 Adm. & Ecc. 393; Taubman v. Pacific Co., 26 Law T. (N. S.) 704; Steel v. Steam-Ship Co., L. R. 3 App. Cas. 72; Railway Co. v. Brown, L. R. 8 App. Cas. 703. It may therefore be assumed that the stipulation now in question, though invalid by our law, would be valid according to the law of Great Britain. The general rule as to what law should prevail, in case of a conflict of laws concerning a private contract, was concisely and exactly stated before the declaration of independence by Lord MANSFIELD, (as reported by Sir William Blackstone, who had been of counsel in the case,) as follows: 'The general rule, established ex comitate et jure gentium, is that the place where the contract is made, and not where the action is brought, is to be considered in expounding and enforcing the contract. But this rule admits of an exception, where the parties (at the time of making the contract) had a view to a different kingdom.' Robinson v. Bland, 1 W. Bl. 234, 256, 258, 2 Burrows, 1077, 1078. The recent decisions by eminent English judges, cited at the bar, so clearly affirm and so strikingly illustrate the rule, as applied to cases more or less resembling the case before us, that a full statement of them will not be inappropriate. In Navigation Co. v. Shand, 3 Moore, P. C. (N. S.) 272, 290, Lord Justice TURNER, delivering judgment in the privy council, reversing a decision of the supreme court of Mauritius, said: 'The general rule is that the law of the country where a contract is made governs as to the nature, the obligation, and the interpretation of it. The parties to a contract are either the subjects of the power there ruling, or as temporary residents owe it a temporary allegiance. In either case, equally, they must be understood to submit to the law there prevailing, and to agree to its action upon their contract. It is, of course, immaterial that such agreement is not expressed in terms. It is equally an agreement in fact, presumed de jure, and a foreign court interpreting or enforcing it on any contrary rule defeats the intention of the parties, as well as neglects to observe the recognized comity of nations.' It was accordingly held that the law of England, and not the French law in force at Mauritius, governed the validity and construction of a contract made in an English port between an English company and an English subject to carry him thence by way of Alexandria and Suez to Mauritius, and containing a stipulation that the company should not be liable for loss of passengers' baggage, which the court in Mauritius had held to be invalid by the French law. Id. 278. Lord Justice TURNER observed that it was a satisfaction to find that the court of cassation in France had pronounced a judgment to the same effect, under precisely similar circumstances, in the case of a French officer taking passage at Hong Kong, an English possession, for Marseilles in France, under a like contract, on a ship of the same company, which was wrecked in the Red sea, owing to the negligence of her master and crew. Julien v. Oriental Co., imperfectly stated in 3 Moore P. C. (N. S.) 282, note, and fully reported in 75 Journal du Palais, 225, (1864). The case of Lloyd v. Guibert, 6 Best & S. 100, L. R. 1 Q. B. 115, decided in the queen's bench before, and in the exchequer chamber after, the decision in the privy council just referred to, presented this peculiar state of facts: A French ship owned by Frenchmen was chartered by the master, in pursuance of his general authority as such, in a Danish West India island, to a British subject, who knew her to be French, for a voyage from St. Marc, in Hayti, to Havre, London, or Liverpool, at the charterer's option, and he shipped a cargo from St. Marc to Liverpool. On the voyage, the ship sustained damage from a storm which compelled her to put into a Portuguese port. There the master lawfully borrowed money on bottomry, and repaired the ship, and she carried her cargo safe to Liverpool. The bondholder proceeded in an English court of admiralty against the ship, freight, and cargo, which being insufficient to satisfy the bond, he brought an action at law to recover the deficiency against the owners of the ship; and they abandoned the ship and freight in such manner as by the French law absolved them from liability. It was held that the French law governed the case, and therefore the plaintiff could not recover. It thus appears that in that case the question of the intent of the parties was complicated with that of the lawful authority of the master; and the decision in the queen's bench was put wholly upon the ground that the extent of his authority to bind the ship, the freight, or the owners was limited by the law of the home port of the ship, of which her flag was sufficient notice. 6 Best & S. 100. That decision was in accordance with an earlier one of Mr. Justice STORY, in Pope v. Nickerson, 3 Story, 465, as well as with later ones in the privy council, on appeal from the high court of admiralty, in which the validity of a bottomry bond has been determined by the law prevailing at the home port of the ship, and not by the law of the port where the bond was given. The Karnak, L. R. 2 P. C. 505, 512; The Gaetano, L. R. 7 Prob. Div. 137. See, also, The Woodland, 7 Ben. 110, 118, 14 Blatchf. 499. 503, and 104 U. S. 180. The judgment in the exchequer chamber in Lloyd v. Guibert was put upon somewhat broader ground. Mr. Justice WILLES, in delivering that judgment, said: 'It is generally agreed that the law of the place where the contract is made is prima facie that which the parties intended, or ought to be presumed to have adopted, as the footing upon which they dealt, and that such law ought therefore to prevail in the absence of circumstances indicating a different intention, as, for instance, that the contract is to be entirely performed elsewhere, or that the subject-matter is immovable property situated in another country, and so forth; which latter, though sometimes treated as distinct rules, appear more properly to be classed as exceptions to the more general one, by reason of the circumstances indicating an intention to be bound by a law different from that of the place where the contract is made; which intention is inferred from the subject-matter and from the surrounding circumstances, so far as they are relevant to construe and determine the character of the contract.' L. R. 1 Q. B. 122, 123, 6 Best & S. 133. It was accordingly held, conformably to the judgment in Navigation Co. v. Shand, above cited, that the law of England, as the law of the place of final performance or port of discharge, did not govern the case, because it was 'manifest that what was to be done at Liverpool was but a small portion of the entire service to be rendered, and that the character of the contract cannot be determined thereby,' although as to the mode of delivery the usages of Liverpool would govern. L. R. 1 Q. B. 125, 126, 6 Best & S. 137. It was then observed that the law of Portugal, in force where the bottomry bond was given, could not affect the case; that the law of Hayti had not been mentioned or relied upon in argument; and that, 'in favor of the law of Denmark, there is the cardinal fact that the contract was made in Danish territory, and, further, that the first act done towards performance was weighing anchor in a Danish port;' and it was finally, upon a view of all the circumstances of the case, decided that the law of France, to which the ship and her owners belonged, must govern the question at issue. The decision was, in substance, that the presumption that the contract should be governed by the law of Denmark, in force where it was made, was not overcome in favor of the law of England by the fact that the voyage was to an English port and the charterer an Englishman, nor in favor of the law of Portugal by the fact that the bottomry bond was given in a Portuguese port; but that the ordinary presumption was overcome by the consideration that French owners and an English charterer, making a charter-party in the French language of a French ship, in a port where both were foreigners, to be performed partly there by weighing anchor for the port of loading, (a place where both parties would also be foreigners,) partly at that port by taking the cargo on board, principally on the high seas, and partly by final delivery in the port of discharge, must have intended to look to the law of France as governing the question of the liability of the owner beyond the value of the ship and freight. In two later cases, in each of which the judgment of the queen's bench division was affirmed by the court of appeal, the law of the place where the contract was made was held to govern, notwithstanding some of the facts strongly pointed towards the application of another law,—in the one case, to the law of the ship's flag; and in the other, to the law of the port where that part of the contract was to be performed, for the nonperformance of which the suit was brought. In the first case a bill of lading, issued in England, in the English language, to an English subject, by a company described therein as an English company, and in fact registered both in England and in Holland, for goods shipped at Singapore, an English port, to be carried to a port in Java, a Dutch possession, in a vessel with a Dutch name, registered in Holland, commanded by a Dutch master, and carrying the Dutch flag, in order to obtain the privilege of trading with Java, was held to be governed by the law of England, and not by that of Holland, in determining the validity and construction of a clause exempting the company from liability for negligence of master and crew; and Lords Justices BRETT and LINDLEY both considered it immaterial whether the ship was regarded as English or Dutch. Bank v. Navigation Co., L. R. 9 Q. B. Div. 118, and L. R. 10 Q. B. Div. 521, 529, 536, 540, 544. As Lord Justice LINDLEY observed: 'This conclusion is not at all at variance with Lloyd v. Guibert, but rather in accordance with it. It is true that in that case the law of the flag prevailed; but the intention of the parties was admitted to be the crucial test, and the law of the ship's flag was considered as the law intended by the parties to govern their contract, as there really was no other law which they could reasonably be supposed to have contemplated. The plaintiff there was English; the defendant French; the lex loci contractus was Danish; the ship was French; her master was French; and the contract was in the French language. The voyage was from Hayti to Liverpool. The facts here are entirely different, and so is the inference to be deduced from them. The lex loci contractus was here English, and ought to prevail unless there is some good ground to the contrary. So far from there being such ground, the inference is very strong that the parties really intended to contract with reference to English law.' L. R. 10 Q. B. Div. 540. In the remaining English case, a contract made in London between two English mercantile houses, by which one agreed to sell to the other 20,000 tons of Algerian esparto, to be shipped by a French company at an Algerian port on board vessels furnished by the purchasers at London, and to be paid for by them in London on arrival, was held to be an English contract, governed by English law, notwithstanding that the shipment of the goods in Algiers had been prevented by vis major, which, by the law of France in force there, excused the seller from performing the contract. Jacobs v. Cr edit Lyonnais, L. R. 12 Q. B. Div. 589. That result was reached by applying the general rule expressed by DENMAN, J., in these words: 'The general rule is that where a contract is made in England between merchants carrying on business here, as this is, but to be performed elsewhere, the construction of the contract, and all its incidents, are to be governed by the law of the country where the contract is made, unless there is something to show that the intention of the parties was that the law of the country where the contract is to be performed should prevail;' and summed up by the court of appeal, consisting of BRETT, M. R., and BOWEN, L. J., as follows: 'The broad rule is that the law of a country where a contract is made presumably governs the nature, the obligation, and the interpretation of it, unless the contrary appears to be the express intention of the parties.' L. R. 12 Q. B. Div. 596, 597, 600. This court has not heretofore had occasion to consider by what law contracts like those now before us should be expounded. But it has often affirmed and acted on the general rule, that contracts are to be governed, as to their nature, their validity, and their interpretation, by the law of the place where they were made, unless the contracting parties clearly appear to have had some other law in view. Cox v. U. S., 6 Pet. 172; Scudder v. Bank, 91 U. S. 406; Pritchard v. Norton, 106 U. S. 124, 1 Sup. Ct. Rep. 102; Lamar v. Micou, 114 U. S. 218, 5 Sup. Ct. Rep. 857; Watts v. Camors, 115 U. S. 353, 362, 6 Sup. Ct. Rep. 91. The opinion in Watts v. Camors, just cited, may require a word or two of explanation. It was there contested whether, in a charter-party made at New Orleans between an English owner and an American charterer of an English ship, for a voyage from New Orleans to a port on the continent of Europe, a clause regulating the amount payable in case of any breach of the contract was to be considered as liquidating the damages, or as a penalty only. Such was the question of which the court said that if it depended upon the intent of the parties, and consequently upon the law which they must be presumed to have had in view, they 'must be presumed to look to the general maritime law of the two countries, and not to the local law of the state in which the contract is signed.' The choice there was not between the American law and the English law, but between the statutes and decisions of the state of Louisiana and a rule of the maritime law common to the United States and England. Some reliance was placed by the appellant upon the following observations of Mr. Justice STORY, sitting in the circuit court: 'If a contract is to be performed partly in one country and partly in another country, it admits of a double aspect, nay, it has a double operation, and is, as to the particular parts, to be interpreted distinctively; that is, according to the laws of the country where the particular parts are to be performed or executed. This would be clearly seen in the case of a bill of lading of goods deliverable in portions or parts at ports in different countries. Indeed, in cases of contracts of affreightment and shipment, it must often happen that the contract looks to different portions of it to be performed in different countries; some portions at the home port, some at the foreign port, and some at the return port.' 'The goods here were deliverable in Philadelphia; and what would be an effectual delivery thereof, in the sense of the law, (which is sometimes a nice question,) would, beyond question, be settled by the law of Pennsylvania. But to what extent the owners of the schooner are liable to the shippers for a non-fulfillment of a contract of shipment of the master—whether they incur an absolute or a limited liability—must depend upon the nature and extent of the authority which the owners gave him, and this is to be measured by the law of Massachusetts,' where the ship and her owners belonged. Pope v. Nickerson, 3 Story, 465, 484, 485. But in that case the last point stated was the only one in judgment; and the previous remarks evidently had regard to such distinct obligations included in the contract of affreightment as are to be performed in a particular port,—for instance, what would be an effectual delivery, so as to terminate the liability of the carrier, which, in the absence of express stipulation on that subject, is ordinarily governed by the law or usage of the port of discharge. Robertson v. Jackson, 2 C. B. 412; Lloyd v. Guibert, L. R. 1 Q. B. Div. 115, 126, 6 Best & S. 100, 137. In Morgan v. Railroad Co., 2 Woods, 244, a contract made in New York, by a person residing there, with a railroad corporation having its principal office there, but deriving its powers from the laws of other states, for the conveyance of interests in railroads and steam-boat lines, the delivery of property, and the building of a railroad in those states, and which, therefore, might be performed partly in New York, and must be performed partly in the other states, was held by Mr. Justice BRADLEY, so far as concerned the right of one party to have the contract rescinded on account of non-performance by the other party, to be governed by the law of New York, and not by either of the diverse laws of the other states in which parts of the contract were to be performed. In Hale v. Navigation Co., 15 Conn. 538, 546, goods were shipped at New York for Providence, in Rhode Island, or Boston, in Massachusetts, on a steam-boat employed in the business of transportation between New York and Providence; and an exemption, claimed by the carrier under a public notice, was disallowed by the supreme court of Connecticut, because by the then law of New York the liability of a common carrier could not be limited by such a notice. Chief Justice WILLIAMS, delivering judgment, said: 'The question is, by what law is this contract to be governed? The rule upon that subject is well settled, and has been often recognized by this court, that contracts are to be construed according to the laws of the state where made, unless it is presumed from their tenor that they were entered into with a view to the laws of some other state. There is nothing in this case, either from the location of the parties or the nature of the contract, which shows that they could have had any other law in view than that of the place where it was made. Indeed, as the goods were shipped to be transported to Boston or Providence, there would be the most entire uncertainty what was to be the law of the case if any other rule was to prevail. We have therefore no doubt that the law of New York, as to the duties and obligations of common carriers, is to be the law of the case.' In Dyke v. Railway Co., 45 N. Y. 113, 117, a passenger traveling upon a ticket by which a railroad corporation, established in New York, and whose road extended from one place to another in that state, passing through the states of Pennsylvania and New Jersey by their permission, agreed to carry him from one to another place in New York, was injured in Pennsylvania, by the law of which the damages in actions against railroads for personal injury were limited to $3,000. The court of appeals of New York held that the law of Pennsylvania had no application to the case; and Mr. Justice ALLEN, delivering the opinion, referred to the case of Navigation Co. v. Shand, before cited, as analogous in principle, and said: 'The contract was single, and the performance one continuous act. The defendant did not undertake for one specific act, in part performance, in one state, and another specific and distinct act in another of the states named, as to which the parties could be presumed to have had in view the laws and usages of distinct places. Whatever was done in Pennsylvania was a part of the single act of transportation from Attica or Waverly, in the state of New York, to the city of New York, and in performance of an obligation assumed and undertaken in this state, and which was indivisible. The obligation was created here, and by force of the laws of this state, and force and effect must be given to it in conformity to the laws of New York. The performance was to commence in New York, and to be fully completed in the same state, but liable to breach, partial or entire, in the states of Pennsylvania and New Jersey, through which the road of the defendant passed; but whether the contract was broken, and if broken the consequences of the breach, should be determined by the laws of this state. It cannot be assumed that the parties intended to subject the contract to the laws of the other states, or that their rights and liabilities should be qualified or varied by any diversities that might exist between the laws of those states and the lex loci contractus.' In McDaniel v. Railway Co., 24 Iowa, 412, 417, cattle transported by a railroad company from a place in Iowa to a place in Illinois, under a special contract made in Iowa, containing a stipulation that the company should be exempt from liability for any damage, unless resulting from collision or derailing of trains, were injured in Illinois by the negligence of the company's servants; and the supreme court of Iowa, Chief Justice DILLON presiding, held the case to be governed by the law of Iowa, which permitted no common carrier to exempt himself from the liability which would exist in the absence of contract. The court said: 'The contract being entire and indivisible, made in Iowa, and to be partly performed here, it must, as to its validity, nature, obligation, and interpretation, be governed by our law. And by our law, so far as it seeks to change the common law, it is wholly nugatory and inoperative. The rights of the parties, then, are to be determined under the common law, the same as if no such contract had been made.' So in Pennsylvania Co. v. Fairchild, 69 Ill. 260, where a railroad company received in Indiana goods consigned to Leavenworth, in Kansas, and carried them to Chicago, in Illinois, and there delivered them to another railroad company, in whose custody they were destroyed by fire, the supreme court of Illinois held that the case must be governed by the law of Indiana, by which the first company was not liable for the loss of the goods after they had passed into the custody of the next carrier in the line of transit. The other cases in the courts of the several states cited at the bar afford no certain or satisfactory guide. Two cases, held not to be governed by a statute of Pennsylvania, providing that no railroad corporation should be liable for a loss of passenger's baggage beyond $300, unless the excess in value was disclosed and paid for, were decided (whether rightly or not we need not consider) without much reference to authority, and upon their peculiar circumstances,—the one case, on the ground that a contract by a New Jersey corporation to carry a passenger and his baggage from a wharf in Philadelphia across the Delaware river, in which the states of Pennsylvania and New Jersey had equal rights of navigation and passage, and thence through the state of New Jersey to Atlantic City, was a contract to be performed in New Jersey and governed by the law of that state; (Brown v. Railroad Co., 83 Pa. St. 316;) and the other case, on the ground that the baggage received at a town in Pennsylvania, to be carried to New York city, having been lost after its arrival by negligence on the part of the railroad company, the contract, so far as concerned the delivery, was to be governed by the law of New York, (Curtis v. Railroad Co., 74 N. Y. 116.) The suggestion in Barter v. Wheeler, 49 N. H. 9, 29, that the question, whether the liability of a railroad corporation for goods transported through parts of two states was that of a common carrier or of a forwarder only, should be governed by the law of the state in which the loss happened, was not necessary to the decision, and appears to be based on a strained inference from the observations of Mr. Justice STORY in Pope v. Nickerson, above cited. In a later case, the supreme court of New Hampshire reserved any expression of opinion upon a like question. Gray v. Jackson, 51 N. H. 9, 39. This review of the principal cases demonstrates that, according to the great preponderance, if not the uniform concurrence, of authority, the general rule that the nature, the obligation, and the interpretation of a contract are to be governed by the law of the place where it is made, unless the parties at the time of making it have some other law in view, requires a contract of affreightment, made in one country between citizens or residents thereof, and the performance of which begins there, to be governed by the law of that country, unless the parties, when entering into the contract, clearly manifest a mutual intention that it shall be governed by the law of some other country. There does not appear to us to be anything in either of the bills of lading in the present case tending to show that the contracting parties looked to the law of England, or to any other law than that of the place where the contract was made. The bill of lading for the bacon and hams was made and dated at New York, and signed by the ship's agent there. It acknowledges that the goods have been shipped 'in and upon the steam-ship called 'Montana,' now lying in the port of New York, and bound for the port of Liverpool,' and are to be delivered at Liverpool. It contains no indication that the owners of the steam-ship are English, or that their principal place of business is in England, rather than in this country. On the contrary, the only description of the line of steam-ships, or of the place of business of their owners, is in a memorandum in the margin, as follows: 'Guion Line. United States Mail Steamers. New York: 29 Broadway. Liverpool: 11 Rumford St.' No distinction is made between the places of business at New York and at Liverpool, except that the former is named first. The reservation of liberty, in case of an interruption of the voyage, 'to tranship the goods by any other steamer,' would permit transshipment into a vessel of any other line, English or American. And general average is to be computed, not by any local law or usage, but 'according to York-Antwerp rules,' which are the rules drawn up in 1864 at York, in England, and adopted in 1877 at Antwerp, in Belgium, at international conferences of representatives of the more important mercantile associations of the United States, as well as of the maritime countries of Europe. Lown. Av. (3d Ed.) app. Q. The contract being made at New York, the ship-owner having a place of business there, and the shipper being an American, both parties must be presumed to have submitted themselves to the law there prevailing, and to have agreed to its action upon their contract. The contract is a single one, and its principal object, the transportation of the goods, is one continuous act, to begin in the port of New York, to be chiefly performed on the high seas, and to end at the port of Liverpool. The facts that the goods are to be delivered at Liverpool, and the freight and primage, therefore, payable there in sterling currency, do not make the contract an English contract, or refer to the English law the question of the liability of the carrier for the negligence of the master and crew in the course of the voyage. Navigation Co. v. Shand, Lloyd v. Guibert, and Bank v. Navigation Co., before cited. There is even less ground for holding the three bills of lading of the cotton to be English contracts. Each of them is made and dated at Nashville, an inland city, and is a through bill of lading, over the Louisville & Nashville Railroad and its connections, and by the Williams and Guion Steam-Ship Company, from Nashville to Liverpool; and the whole freight from Nashville to Liverpool is to be 'at the rate of fifty-four pence sterling per 100 lbs. gross weight.' It is stipulated that the liability of the Louisville & Nashville Railroad and its connections as common carriers 'terminates on delivery of the property to the steam-ship company at New York, when the liability of the steam-ship commences, and not before;' and that 'the property shall be transported from the port of New York to the port of Liverpool by the said steam-ship company, with liberty to ship by any other steam-ship or steam-ship line.' And in the margin is this significant reference to a provision of the statutes of the United States, applicable to the ocean transportation only: 'Attention of shippers is called to the act of congress of 1851: 'Any person or persons shipping oil of vitriol, unslacked lime, inflammable matches, [or] gunpowder, in a ship or vessel taking cargo for divers persons on freight, without delivering at the time of shipment a note in writing, expressing the nature and character of such merchandise, to the master, mate, or officer, or person in charge of the loading of the ship or vessel, shall forfeit to the United States one thousand dollars." Act March 3, 1851, c. 43, § 7, 9 St. 636; Rev. St. § 4288. It was argued that as each bill of lading, drawn up and signed by the carrier and assented to by the shipper, contained a stipulation that the carrier should not be liable for losses by perils of the sea arising from the negligence of its servants, both parties must be presumed to have intended to be bound by that stipulation, and must therefore, the stipulation being void by our law and valid by the law of England, have intended that their contract should be governed by the English law; and one passage in the judgment in Navigation Co. v. Shand gives some color to the argument. 3 Moore, P. C. (N. S.) 291. But the facts of the two cases are quite different in this respect. In that case, effect was given to the law of England, where the contract was made, and both parties were English, and must be held to have known the law of their own country. In this case, the contract was made in this country, between parties one residing and the other doing business here; and the law of England is a foreign law, which the American shipper is not presumed to know. Both parties or either of them may have supposed the stipulation to be valid; or both or either may have known that by our law, as declared by this court, it was void. In either aspect, there is no ground for inferring that the shipper, at least, had any intention, for the purpose of securing its validity, to be governed by a foreign law, which he is not shown, and cannot be presumed, to have had any knowledge of. Our conclusion on the principal question in the case may be summed up thus: Each of the bills of lading is an American, and not an English, contract, and, so far as concerns the obligation to carry the goods in safety, is to be governed by the American law, and not by the law, municipal or maritime, of any other country. By our law, as declared by this court, the stipulation by which the appellant undertook to exempt itself from liability for the negligence of its servants is contrary to public policy, and therefore void; and the loss of the goods was a breach of the contract, for which the shipper might maintain a suit against the carrier. This being so, the fact that the place where the vessel went ashore, in consequence of the negligence of the master and officers in the prosecution of the voyage, was upon the coast of Great Britain, is quite immaterial. This conclusion is in accordance with the decision of Judge BROWN in the district court of the United States for the Southern district of New York in The Brantford City, 29 Fed. Rep. 373, which appears to us to proceed upon more satisfactory grounds than the opposing decision of Mr. Justice CHITTY, sitting alone in the chancery division, made since this case was argued, and, so far as we are informed, not reported in the law reports, nor affirmed or considered by any of the higher courts of Great Britain. In re Steam-Ship Co., 58 Law T. (N. S.) 377. The present case does not require us to determine what effect the courts of the United States should give to this contract, if it had expressly provided that any question arising under it should be governed by the law of England. The question of the subrogation of the libelant to the rights of the shippers against the carrier presents no serious difficulty. From the very nature of the contract of insurance as a contract of indemnity, the insurer, upon paying to the assured the amount of a loss, total or partial, of the goods insured, becomes, without any formal assignment, or any express stipulation to that effect in the policy, subrogated in a corresponding amount to the assured's right of action against the carrier or other person responsible for the loss, and in a court of admiralty may assert in his own name that right of the shipper. The Potomac, 105 U. S. 630, 634; Insurance Co. v. Transportation Co., 117 U. S. 312, 321, 6 Sup. Ct. Rep. 750, 1176. In the present case the libelant, before the filing of the libel, paid to each of the shippers the greater part of his insurance, and thereby became entitled to recover so much, at least, from the carrier. The rest of the insurance money was paid by the libelant before the argument in the district court, and that amount might have been claimed by amendment, if not under the original libel. The Charles Morgan, 115 U. S. 69, 75, 5 Sup. Ct. Rep. 1172; The Gazelle, 128 U. S. 474, 9 S.Ct. 139. The question of the right of the libelant to recover to the whole extent of the insurance so paid was litigated and included in the decree in the district court, and in the circuit court on appeal; and no objection was made in either of those courts, or at the argument in this court, to any insufficiency of the libel in this particular. The appellant does, however, object that the decree should not include the amount of the loss on the cotton shipped under through bills of lading from Nashville to Liverpool. This objection is grounded on a clause in those bills of lading which is not found in the bill of lading of the bacon and hams shipped at New York; and on the adjudication in Insurance Co. v. Transportation Co., 117 U. S. 312, 6 Sup. Ct. Rep. 750, 1176, that a stipulation in a bill of lading that a carrier, when liable for a loss of the goods, shall have the benefit of any insurance that may have been effected upon them, is valid as between the carrier and the shipper, and therefore limits the right of an insurer of the goods, upon paying to the shipper the amount of a loss by stranding, occasioned by the negligence of the carrier's servants, to recover over against the carrier. But it behooves a carrier setting up such a defense to show clearly that the insurance on the goods is one which by the terms of his contract he is entitled to the benefit of. Inman v. Railway Co., 129 U.S. 128, ante, 249. The through bills of lading of the cotton are signed by an agent of the railroad companies and the steam-ship company, 'severally, but not jointly,' and contain, in separate columns, two entirely distinct sets of 'terms and conditions,' the first relating exclusively to the land carriage by the railroads and their connections, and the second to the ocean transportation by the steamship. The clause relied on, providing that in case of any loss or damage of the goods, whereby any legal liability shall be incurred, that company only shall be held answerable in whose actual custody the goods are at the time, 'and the carrier so liable shall have the full benefit of any insurance that may have been effected upon or on account of said goods,' is inserted in the midst of the terms and conditions defining the liability of the railroad companies, and is omitted in those defining the liability of the steam-ship company, plainly signifying an intention that this clause should not apply to the latter. It is quite clear, therefore, that the appellant has no right to claim the benefit of any insurance on the goods. See Railroad Co. v. Androscoggin Mills, 22 Wall. 594, 602. The result of these considerations is that the decree of the circuit court is in all respects correct and must be affirmed. FULLER, C. J., and LAMAR, J., were not members of the court when this case was argued, and took no part in its decision.
131.US.65	No error can be examined in the rulings of the court at the trial of a cause by the court without a jury by agreement of parties, if there is no allegation in the record that the stipulation was in writing, as required by the statute. Bond v. Dustin, 112 U. S. 604, and Dundee Mortgage Co. v. Hughes, 124 U. S. 157, followed.	All of these cases were tried by the court without a jury, by agreement of the parties, as alleged in the record; but there is no allegation that the stipulation was in writing, as required by the statute; and, under the ruling in Bond v. Dustin, 112 U. S. 604, 5 Sup. Ct. Rep. 296, and Mortgage Co. v. Hughes, 124 U. S. 157, 8 Sup. Ct. Rep. 377, no error can be examined in the rulings of the court at the trial. We can only inquire whether the declarations were respectively sufficient to sustain the judgments. As there appears to be no error in this regard, the judgments are all, severally, affirmed.
130.US.189	The legislature of New Jersey, by a statute, enacted that a "poor farm," belonging to the city of New Brunswick, and situated in the township of North Brunswick, should be at all times thereafter liable and subject to taxation by that township so long as it should be embraced within its limits. Subsequently, it was enacted by a statute, that the property of the cities of the State, and all land used exclusively for charitable purposes should be exempt from taxation, and that all inconsistent acts were repealed. The "poor farm" was used exclusively for charitable purposes; Held: (1) The provision of the first statute was repealed; (2) The legislature could constitutionally repeal the power of taxation given by the first statute; (3) The first statute did not create a contract between the State and the township, the obligation of which could not be constitutionally impaired by its repeal. The power of taxation on the part of a municipal corporation is not private property, or a vested right of property in its hands; but the conferring of such power is an exercise by the legislature of a public and governmental power which cannot be imparted in perpetuity, and is always subject to revocation, modification and control, and is not the subject of contract.	This is a writ of error to the supreme court of the state of New Jersey. The case arose on a writ of certiorari issued by that court at the instance of the mayor and common council of the city of New Brunswick, to review an assessment for taxation made by the township of North Brunswick, and a levy made by the collector of that ownership, against a farm known as the 'Poor Farm,' and personal property thereon, situated in the township of North Brunswick, and owned by the mayor and common council of the city of New Brunswick. The case arose on the following facts, which were agreed upon by the counsel for the respective parties: By a special act of the legislature of New Jersey, approved February 28, 1860, (Laws 1860, c. 67, p. 162,) parts of the townships of North Brunswick and Monroe, in the county of Middlesex, were set off and established as a separate township, to be called 'East Brunswick,' and part of the township of North Brunswick was set off and established as a separate township, to be called the 'Township of New Brunswick,' and the township committees of the said townships of North Brunswick East Brunswick, and New Brunswick were authorized and required to divide the real and personal property of the township of North Bruns wick between said townships. The poor-farm of the original township of North Brunswick was situate within the limits of what remained of the township of North Brunswick, after the setting off of the townships of East Brunswick and New Brunswick as aforesaid. By a special act of the legislature, approved March 15, 1861, (Laws 1861, c. 170, p. 507,) the said township of New Brunswick and the city of New Brunswick were declared to be one corporate body, under the name of 'The Corporation of the City of New Brunswick,' and the said corporation was made subject to all the liabilities of the inhabitants of the township of New Brunswick. The poor-farm and the personal property thereon were never divided between the townships of North Brunswick and East Brunswick and the corporation of the city of New Brunswick, but the townships agreed to sell and convey their interests in the same to said corporation. By a special act of the legislature, approved February 18, 1862, (Laws 1862, c. 37, p. 52,) the township committees of North Brunswick and East Brunswick were authorized to convey all the interests of the said townships in said farm and the personal property thereon to the said corporation; and it was thereby further enacted that the said poor-farm and the personal property thereon should be at all times thereafter liable and subject to taxation by the township of North Brunswick, so long as it should be embraced in the limits of said township. By virtue of the authority thereby given, the township committees of said townships sold and conveyed said farm and the personal property thereon to said corporation, by deed of conveyance, bearing date March 27, 1862. The said corporation of the city of New Brunswick entered into possession of said farm, and the personal property thereon, under the contract expressed in said deed of conveyance, and is still in possession of the same, and the said farm is still within the limits of the township of North Brunswick. The said farm and property have been duly assessed by the township of North Brunswick each year since said sale and conveyance, and the taxes so assessed have been paid by the corporation of the city of New Brunswick to the township of North Brunswick up to and including the year 1877, when further payments were refused, on the ground that said poor farm was used exclusively for charitable purposes, and therefore was not liable to taxation. This certiorari brings up the assessment for the year 1878, for the purpose of determining whether said farm and personal property thereon are liable and subject to taxation by said township of North Brunswick. The deed of March 27, 1862, which contains a copy of the act approved February 18, 1862, is set forth in the margin.1 It was agreed between the attorney for the plaintiff in the certiorari and the attorney for the defendant that the sole question to be discussed in the supreme court of New Jersey was whether the poor-farm, situated in the township of North Brunswick, and owned by the city of New Brunswick, was exempt from taxation, and that the poor-farm referred to, the buildings thereon, and the furniture and fixtures therein, were used exclusively for charitable purposes by the city of New Brunswick, the owner thereof. The questions considered by the supreme court of New Jersey were (1) whether the second section of the act approved February 18, 1862, was repealed by the general tax law of the state, approved April 11, 1866, (Revision, 1150,) the fifth section of which enacted that the property of the cities of the state, and all buildings used exclusively for charitable purposes, with the land whereon the same are erected, and which may be necessary for the fair enjoyment thereof, and the furniture and personal property used therein, shall be exempt from taxation; and the thirty-second section of which, after repealing certain acts named, repealed all other acts, or parts of acts, whether special or local, or otherwise, inconsistent with the provisions of the act of 1866, except one act, approved in 1864, and such special or local acts as had been approved since 1862; (2) whether, if the legislature had, by the act of April 11, 1866, declared its purpose to repeal the second section of the act of February 18, 1862, such purpose could be constitutionally enforced. The supreme court held (44 N. J. Law, 165) (1) that the declaration in the general law of 1866 that all acts and parts of acts, whether special or local, or otherwise, inconsistent with its provisions, were repealed, abrogated the provisions in the prior special act of 1862 for the taxation of the poor-farm and the personal property thereon by the township of North Brunswick, because such provision in the act of 1862 was inconsistent with the provision in the act of 1866 exempting from taxation all property of the cities of the state and all property used exclusively for charitable purposes; (2) that the legislature could constitutionally repeal the power of taxing the poor-farm and the personal property thereon, given by the act of 1862 to the township of North Brunswick. The court decided that the provisions of the two statutes could not stand together, and that it was impossible to give full effect to the language of the repealing provision of the act of 1866 and keep in operation the second section of the act of 1862. It also decided that the provision of the second section of the act of 1862 did not become, by reason of the subsequent conveyance of March 27, 1862, to the corporation of the city of New Brunswick, a contract between that corporation and the township of North Brunswick, the obligation of which the legislature was forbidden to impair; that one legislature could not confer upon a township a power of taxation which a subsequent legislature could not revoke, against the objection of the township; that the power of a legislature over a corporation created for the purposes of local government was supreme; that no contract with such a corporation arose from the delegation to it of taxing authority, (citing Tinsman v. Railroad Co., 26 N. J. Law, 148; Mayor v. Railroad Co., 20 N. J. Eq. 360; and Rader v. South-Easterly Road Dist., 36 N. J. Law, 273;) and that the power of taxation was not in any sense the private property of the municipality, but was peculiarly a public and governmental power, and must, as such, be at all times susceptible of repeal or modification, according to legislative discretion, so far as the mere right of the township to exercise it was concerned. The judgment of the supreme court was that the assessment of taxes should be set aside. The collector of the township removed the case, by a writ of error, to the court of errors and appeals of the state, which affirmed the judgment in an opinion (46 N. J. Law, 204) adopting the reasons given by the supreme court. The case having been remitted to the supreme court, the collector has brought it here by a writ of error to that court. On the question as to the effect of the act of 1866, in repealing the second section of the act of 1862, we concur with the highest court of New Jersey, that the provisions of the two statutes cannot stand together, and that it is impossible to give full effect to the language of the repealing provision of the act of 1866, and keep in operation the second section of the act of 1862. We must therefore hold, as the state court held, that the second section of the act of 1862 was repealed by the act of 1866. This leaves open only the consideration of the question as to whether the second section of the act of 1862 created a contract, the obligation of which could not be constitutionally impaired by the repeal of such second section. It is contended for the collector that the tax provided for by the second section of the act of 1862 is in the nature of a ground-rent, and of a right reserved by the township of North Brunswick out of the land conveyed by the deed of March, 1862; that the fee of the poor-farm belonged to the township in its private and proprietary character; that the farm had been acquired by the taxation of the inhabitants of the township; that the legislature could not deprive them of it without their consent; that the township was authorized by the legislature to convey the farm to the corporation of the city of New Brunswick for the consideration, in part, of the right of the township of North Brunswick to tax it so long as it should be embraced in the limits of that township; that, in taking the title, the city of New Brunswick agreed to pay to that township an annual sum to be determined in amount by the annual tax-rate of that township, so long as the farm should remain under, and receive the benefit of, the municipal government of that township; that the right thus reserved of levying and collecting such tax became thereby vested in that township, and the amount of tax, when determined, became its private property; and that the case involves the question of the authority of the legislature over the private property and vested rights of the township, and not the question of its authority over the public and governmental powers of the township. We concur in the views of the court of errors and appeals of New Jersey on this question. It is not the same question as that involved in the principle recognized by this court, that a provision in an act of a legislature, exempting certain specified property from taxation by the authorities of a state or a municipality, for all time or for a limited time, constitutes a contract in respect of such property, the obligation of which cannot be impaired by a subsequent legislature, and is therefore a contract within the protection of the constitution of the United States. It is to be observed in the present case that the act of February 18, 1862, does not assert or recognize the fact that the privilege of taxing the poor-farm in the future was a part of the consideration for the conveyance of that farm by the township of North Brunswick. The act recites that the townships of North Brunswick and East Brunswick had agreed to convey and sell to the corporation of the city of New Brunswick their interest in the poor-farm, and the personal property thereon, for the sum of $2,611.13, 'the value of the interest of those townships therein.' It then empowers the two townships to convey their interest in the poor-farm, and the personal property thereon, to the corporation of the city of New Brunswick 'for the sum aforesaid.' It then enacts, in the second section, which is a separate and independent section, 'that the said poor-farm, and the personal property thereon, shall be at all times hereafter liable and subject to taxation by the said township of North Brunswick, so long as it is embraced in the limits of the said township of North Brunswick.' So, also, the deed of March 27, 1862, recites as its consideration the sum of $2,611.13, paid by the corporation of the city of New Brunswick to the grantors. No other consideration is expressed. The act of February 18, 1862, is incorporated in the deed as the authority by virtue of which the grantors convey the property. It is not intended to suggest that, if the right of taxation had been named in the act or in the deed as a part of the consideration for the conveyance, it would have made a different case; but reference is made to the actual provisions of the act and the deed solely for the purpose of showing that they evince no idea on the part of the legislature, or of the parties to the conveyance, that the perpetual right of taxation now asserted formed any part of the consideration of the transaction. The true principle involved in the case is whether the power of taxation on the part of a municipal corporation is private property, or a vested right of property, in its hands, which, when once conferred upon it by an act of the legislature, cannot be subsequently modified or repealed. Even without the special provision of the second section of the act of February 18, 1862, it is to be presumed that the poorfarm, and the personal property thereon, would, while situated in the township of North Brunswick, be subject to taxation by that township, unless exempted from such taxation on the ground of a charitable use. The special question in this case arises, therefore, solely out of the use of the words, in the second section, 'at all times hereafter.' The provision of the second section, and the contention here made on the part of the collector, necessarily imply the authority of the legislature to confer the power of taxation upon the township, and the non-existence of such power unless conferred by the legislature. The question arising is therefore whether the legislature which passed the act of February 18, 1862, could lawfully so grant the power of taxation to the township in perpetuity that a subsequent legislature could not repeal or modify such grant of power. We are clearly of opinion that such a grant of the power of taxation by the legislature of a state does not form such a contract between the state and the township as is within the protection of the provision of the constitution of the United States which forbids the passage by a state of a law impairing the obligation of contracts. The conferring of such right of taxation is an exercise by the legislature of a public and governmental power. It is the imparting to the township of a portion of the power belonging to the state, which it can lawfully impart to a subordinate municipal corporation. But, from the very character of the power, it cannot be imparted in perpetuity, and is always subject to revocation, modification, and control by the legislative authority of the state. The authorities to this effect are uniform. 1 Dill. Mun. Corp. (3d Ed.) §§ 61, 63, and cases there cited; Cooley, Const. Lim. (3d Ed.) 192, 193, *237, and cases there cited; East Hartford v. Bridge Co., 10 How. 511, 534; Bank v. Knoop, 16 How. 369, 380; U. S. v. Railroad Co., 17 Wall. 322, 329; Philadelphia v. Fox, 64 Pa. St. 169; Mayor v. Railroad Co., 20 N. J. Eq. 360; Police Jury v. Shreveport, 5 La. Ann. 661, 665; State v. St. Louis Co. Court, 34 Mo. 546, 552; People v. Morris, 13 Wend. 325, 331; Warner v. Beers, 23 Wend. 103, 126; City of Richmond v. Railroad Co., 21 Grat. 604, 613; County of Richland v. County of Lawrence, 12 Ill. 8; Trustees v. Tatman, 13 Ill. 27, 30; Gutzweller v. People, 14 Ill. 142; Sangamon Co. v. City of Springfield, 63 Ill. 66, 71. In the present case, the second section of the act of February 18, 1862, has no more force than if the words 'at all times hereafter' had been omitted, and the section is to be construed as if it only temporarily conferred the right of taxation on the township, subject to be recalled at the pleasure of the legislature. There is no element of private property in the right of taxation conferred upon a municipal corporation. Property acquired by paying for it with money raised by taxation is property. The legislation in question does not affect or interfere with any such property. The poor-farm, and the personal property thereon, are not the property of the township of North Brunswick, but are the property of the corporation of the city of New Brunswick. Nor is there anything violative of any provision of the constitution of the United States in the enactment of the legislature of New Jersey that the property in question shall be exempt from taxation because it is used exclusively for charitable purposes. The long recognized and universally prevalent policy of making such exemption is a warrant for saying that the second section of the act of February 18, 1862, is fairly to be regarded as containing an implied reservation that such exemption might be thereafter made, as being the exercise of a public and governmental power, resting wholly in the discretion of the legislature, and not the subject of contract. Judgment affirmed
129.US.512	No. 169. Argued January 21, 22, 1889.-Decided March o, 1889. It is not within the general province of a master in chancery to pass upon all the issues in a cause in equity nor is it competent for the court to refer the entire decision of a case to him without consent of the parties. When the parties consent to the reference of a case to a master or other officer to hear and decide all the issues therein, both of fact and of law, and such reference is entered as a rule of court, it is a submission of the controversy to a special tribunal, selected by the parties, to be governed in its conduct by the ordinary rules applicable to the administration of justice in tribunals established by law; and its determinations are not subject to be set aside and disregarded at the discretioh of the court. In practice it is not usual for the court to reject the report of a master, with his findings upon the matters referred to him, unless exceptions are taken to them, and brought to its attention, and unless, upon examination, the findings are found unsupported or essentially defective. The law exacts good faith and fair dealing between partners, to the exclusion of all arrangements which can possibly affect injuriously the profits of the concern. If one partner is the active agent of the firm, and as such receives a salary, beyond what comes to him from his interest as partner, he is clothed with a double trust in his relations with the other partner which imposes upon him the utmost good faith in his dealings; and if he obtains anything to his own benefit in disregard of that trust, a court of equity will subject it to tie benefit of the partnership. When a letter is mailed, addressed to a person at his post-office address, the presumption is that he receives it.	The first question to be considered on the appeal relates to the effect to be given to the findings of fact and of law contained in the report of the special master. The court below refused to treat them as presumptively correct, so as to impose upon the excepting parties the burden of showing error in them. It considered the case as presented on the pleadings and proofs, without reference to the report, to which there was accorded only the weight due to the careful and well-considered opinion of a lawyer chosen by the parties to act as a judge, with qualifications to justify the selection. What that weight was, and in what appreciable way it could affect the judgment of the court, does not appear. A master in chancery is an officer appointed by the court to assist it in various proceedings incidental to the progress of a cause before it, and is usually employed to take and state accounts, to take and report testimony, and to perform such duties as require computation of interest, the value of annuities, the amount of damages in particular cases, the auditing and ascertaining of liens upon property involved, and similar services. The information which he may communicate by his findings in such cases, upon the evidence presented to him, is merely advisory to the court, which it may accept and act upon, or disregard in whole or in part, according to its own judgment as to the weight of the evidence. Basey v. Gallagher, 20 Wall. 670, 680; Quinby v. Conlan, 104 U. S. 420, 424. In practice it is not usual for the court to reject the report of a master, with his findings upon the matter referred to him, unless exceptions are taken to them, and brought to its attention, and upon examination the findings are found unsupported, or defective in some essential particular. Medsker v. Bonebrake, 108 U. S. 66, 2 Sup. Ct. Rep. 351; Tilghman v. Proctor, 125 U. S. 136, 149, 8 Sup. Ct. Rep. 894; Callaghan v. Myers, 128 U. S. 617, 666, ante, 177. It is not within the general province of a master to pass upon all the issues in an equity case, nor is it competent for the court to refer the entire decision of a case to him, without the consent of the parties. It cannot, of its own motion, or upon the request of one party, abdicate its duty to determine by its own judgment the controversy presented, and devolve that duty upon any of its officers. But when the parties consent to the reference of a case to a master or other officer to hear and decide all the issues therein, and report his findings, both of fact and of law, and such reference is entered as a rule of the court, the master is clothed with very different powers from those which he exercises upon ordinary references, without such consent; and his determinations are not subject to be set aside and disregarded at the mere discretion of the court. A reference, by consent of parties, of an entire case for the determination of all its issues, though not strictly a submission of the controversy to arbitration,—a proceeding which is governed by special rules,—is a submission of the controversy to a tribunal of the parties' own selection, to be governed in its conduct by the ordinary rules applicable to the administration of justice in tribunals established by law. Its findings, like those of an independent tribunal, are to be taken as presumptively correct, subject, indeed, to be reviewed, under the reservation contained in the consent and order of the court, when there has been manifest error in the consideration given to the evidence, or in the application of the law, but not otherwise. The reference of a whole case to a master, as here, has become in late years a matter of more common occurrence than formerly, though it has always been within the power of a court of chancery, with the consent of parties, to ordersuch a reference. Haggett v. Welsh, 1 Sim. 134; Dowse v. Coxe, 3 Bing. 20; Prior v. Hembrow, 8 Mees. & W. 873. The power is incident to all courts of superior jurisdiction. Newcomb v. Wood, 97 U. S. 581, 583. By statute in nearly every state, provision has been made for such references of controversies at law. And there is nothing in the nature of the proceeding, or in the organization of a court of equity, which should preclude a resort to it in controversies involving equitable considerations. By the consent in the case at bar it was intended that the master should exercise power beyond that of a reporter of the testimony. If there had been such a limitation of his authority, there would have been no purpose in adding to his power 'to hear the evidence' the power to 'decide all the issues between the parties, and make his report to the court, separately stating his findings of law and of fact,' together with the evidence. To disregard the findings, and treat the report as a mere presentation of the testimony, is to defeat, as we conceive, the purpose of the reference, and disregard the express stipulation of the parties. We are therefore constrained to hold that the learned court below failed to give to the findings of the master the weight to which they were entitled, and that they should have been treated as so far correct and binding as not to be disturbed, unless clearly in conflict with the weight of the evidence upon which they were made. That there was no such conflict is manifest. Upon nearly every important particular relating to the partnership between Arms and Kimberly, and its business, there is hardly and discrepancy in the testimony of the parties. It is only as to the circumstances under which Arms obtained his loan from Fairbank, with which he purchased the shares in the Grand Central Mining Company, that there is any serious dispute; and as that transaction is viewed,—as the act of a partner or agent of the tirm, or as the act of the individual without regard to such partnership,—the conclusion is reached as to his liability to account for them. If the findings are taken as correct—there not being sufficient evidence to justify a disregard of them—there is an end to the controversy, for in accordance with them the firm had an interest in the shares purchased, and the complainant an equitable right to his proportion upon its dissolution. But, independently of the findings, the facts, which are undisputed or sustained by a great preponderance of evidence, must, we think, lead to the same conclusion. As already stated, Arms made two visits to Arizona on the business of the partnership, which consisted principally in the purchase and sale of mining properties, and while there, on both occasions, he visited and examined the Grand Central mine, taking long trips for that purpose, accompanied on one of them by an experienced expert, and thus ascertained the great value of the property. The expenses incurred for himself on both trips and for the expert were charged to and paid by the firm. On one of these visits he met Gage and Witherell, who held certain shares in the company owning that mine, which they desired to sell. Upon his return north in October, 1879, he informed Kimberly of the shares thus held, and advised their purchase. How the necessary means for that purpose could be raised was then discussed between them, Kimberly expressing a willingness to act upon the judgment of Arms, and furnish his portion of the money. Arms mentioned that he had a friend in Chicago by the name of Fairbank,—a man of great wealth, whom he thought he could interest in the purchase, and induce to advance the money. After this consultation Arms went to Chicago, and there succeeded in making an arrangement with Fairbank, by which the latter was to furnish the money to purchase the shares held by Gage and Witherell. The arrangement provided that from the moneys first received from the sale or operation of the mine Fairbank should be reimbursed his advances, and that the sum or interest remaining should be equally divided; but, in case the investment proved a failure, he should be paid one-half of his advances. Arms then returned to Youngstown, in Ohio, and, October 13th, telegraphed Kimberly, who was at Sharon, in Pennsylvania, inquiring where he could meet him. Kimberly replied that he would leave for Youngstown that afternoon, and did so, joining Arms at that place. Gage had previously been there, and Kimberly, on his arrival, immediately inquired for him, evidently desirous of seeing him respecting the proposed purchase of shares held by him and Witherell; for it is not suggested that Gage had any other business than the sale of the shares with either member of the firm. Arms told Kimberly that Gage had left that morning or that day, and then informed him of the arrangement with Fairbank, including the agreement to refund one-half the advances in case the investment proved a failure. To this arrangement Kimberly assented. Arms further said that there might be some misunderstanding with Fairbank, and he wished to know if, in that event, Kimberly would raise the necessary funds to make the purchase, mentioning from forty to fifty thousand dollars. Kimberly assured him that he would if Arms thought it advisable; that is, that the property was worth the money. Soon after wards Arms went to Arizona, and purchased from Gage and Witherell 225 shares in the Grand Central Mining Company. They also gave him a bonus of 40 additional shares, which they had agreed to do in case the purchase was made. Arms also effected a purchase of 74 shares from other parties. All these purchases were made while the partnership between Arms and Kimberly continued as originally formed, changed only by the increase in its capital. The partnership was not dissolved until March 4, 1880. Under these circumstances, the purchase must be deemed to have been made in the interest of the partnership. One member of a partnership in a particular business cannot secretly engage on his own account in such business and keep his earnings to himself. Such conduct would inevitably lead to gross abuses, tempting one partner to apply to his own use profitable adventures, and to turn over to the firm those which were failures. The law exacts good faith and fair dealing between partners, to the exclusion of all arrangements which could possibly affect injuriously the profits of the concern. Arms was not merely a partner of Kimberly; he was the agent of the firm for the transaction of its business, and as such was allowed a salary beyond the interest coming to him as partner. He therefore stood, in his relation to Kimberly, clothed in some respects with a double trust, both of which imposed upon him the utmost good faith in his dealings, so that he might never sink the interest of the firm into that of himself alone. Whatever he may have obtained in disregard of such trust a court of equity will lay hold of and subject to the benefit of the partnership. Neither by open fraud nor concealed deception, nor by any contrivance masking his actual relations to the firm, can a member of it, or an agent of it, be permitted to hold to his own use acquisitions made in disregard of those relations, either as partner or agent. In this statement of their duties we are repeating doctrines of common knowledge, which will be found fully set forth and illustrated in approved treatises on partnerships and agency, and in the adjudications of the courts. Thus, in Mitchell v. Reed, 61 N. Y. 123, to cite one instance, the court of appeals of New York held that one member of a partnership could not, during its existence, without the knowledge of his copartners, take a renewal of a lease for his own benefit, of premises leased by the firm, upon which it had made valuable improvements, and enhanced their rental value, although the term of the renewed lease did not begin until the termination of the partnership. And in giving its decision the court said: 'The relation of partners with each other is one of trust and confidence. Each is general agent of the firm, and is bound to act in entire good faith to the other. The functions, rights, and duties of partners in a great measure comprehend those both of trustees and agents, and the general rules of law applicable to such characters are applicable to them. Neither partner can, in the business and affairs of the firm, clandestinely stipulate for a private advantage to himself. He can neither sell nor buy from the firm at a concealed profit for himself. Every advantage which he can obtain in the business of the firm must inure to the benefit of the firm. These principles are elementary.' See Story, Partn. §§ 174-178; Story, Ag. § 211. We do not attach any weight, as against the conclusions reached, to the fact that on the 5th of March, 1880, the day following the dissolution of the partnership, in an instrument executed by Arms, agreeing to convey to Kimberly, on demand, the undivided onehalf interest which he, Arms, had in mining lands or claims, or stocks in mining interests, or claims in the territory of Arizona, purchased or located by him prior to January 1, 1880, he excepted the interest claimed by him in the Grand Central Mining Company, stating that said interest should belong to him absolutely. That instrument was delivered by Arms to Ohl, who kept it in his possession until some time in the following July. It was not shown to Kimberly, nor had he had any knowledge of it until then. So soon as he saw it, after consultation with counsel, he wrote and mailed to Arms a letter, under date of July 22, 1880, notifying him that he would not consent to his holding the interest in the Grand Central Mining Company as his own property, and stating that the said interest belonged to them jointly, and that he, Kimberly, would have half of it, if he was compelled to obtain it by legal proceedings. Though it is not shown that Arms received the letter, yet, as it was mailed to his postoffice address in Youngstown, Ohio, the presumption is that he did receive it. At any rate, Kimberly never in any way assented to the correctness of the statement in the instrument as to Arms' alleged sole interest in the Grand Central Mining Company, but, on the contrary, repudiated it so soon as it was brought to his knowledge. The fact that the transaction with Fairbank and the purchase of the shares were made in the name of Arms alone does not affect the question. All the purchases for Arms and Kimberly were made in his name alone, or in that of Ohl. Not one was made in the firm name of Arms & Kimberly. Nor does it make any difference that no money was advanced by Kimberly for the purchase. None was advanced by Arms; the money was raised by a loan which Arms negotiated upon conditions that proved profitable to the lender as well as to himself, and of course to him partner. The case of Bissell v. Foss, 114 U. S. 252, 5 Sup. Ct. Rep. 851, does not seem to us to have any bearing on the subject under consideration. There the question was whether a member of a mining partnership, that is, a partnership formed for the development and working of a mine, could acquire the shares of an associate without the knowledge of the other associates, and hold them on his own account; and the court held that it was lawful for him to do so. Mining partnerships or associations, while governed by many rules relating to ordinary partnerships, have some rules peculiar to themselves. One of such rules is that a member may convey his interest or shares to another person without dissolving the partnership, and thus bring into it a new member without the consent of his associates; and may purchase interests in the same or in other mines for his own benefit, without being required to account to the partnership for the property. Kahn v. Smelting Co., 102 U. S. 641. The partnership between Arms and Kimberly was not a mining partnership, in the proper sense of that term. It was not a partnership for developing and working mines, but for the purchase and sale of minerals and mining lands, and in that respect was subject to the rules governing ordinary trading or commercial partnerships. It can no more be called a mining partnership than a partnership for the purchase of the products of a farm, and the lands upon which those products are raised, can be called a partnership to farm the lands. It follows from the views expressed that the decree of the court below must be reversed, and the cause remanded, with directions to confirm the report of the special master, and to take further proceedings not inconsistent with this opinion; and it is so ordered.
132.US.445	A contract between the parties as to the sale of, and payment for, a ranch and cattle, interpreted as to the mode of payment provided for. Where a defendant, on a trial, introduces, under the objection of the plaintiff, parol evidence of what occurred in negotiations between the parties prior to the making of a contract between them, with a view to the construction of the contract, he cannot on a writ of error to review a judgment against him, allege as error the admission of such evidence.	This is an action at law, brought in the superior court of Cook county, Ill., by Milton H. Bennett and Robert L. Dunman against Edward M. McGillin, and removed by the defendant into the circuit court of the United States for the northern district of Illinois. The suit was brought to recover the sum of $108,150, with interest at 6 per cent. per annum from the 15th of July, 1885. The defendant pleaded the general issue and sundry special pleas. The plaintiffs demurred to the latter, the demurrer was sustained, and leave to amend the pleas was denied. There was also a plea of set-off, to which there was a replication, joining issue, and there was a similiter to the plea of the general issue. On the written waiver of a jury, the case was tried before the court, which found the issues for the plaintiffs, and also made special indings, and assessed the damages of the plaintiffs at $115,580.55; for which amount, with costs, judgment was entered in their favor. To review that judgment, the defendant has brought a writ of error. The suit was founded on a written instrument dated April 16, 1885, a copy of which, as set out in the first count of the plaintiff's declaration, is contained in the margin.2 There is a bill of exceptions which contains all the evidence offered on the trial by either party, and the special findings made by the court. The material parts of those findings are as follows: The parties executed the contract sued on. At the date of its execution the defendant paid to the plaintiffs $25,000, and also delivered to them his promissory notes of that date for $75,000, due and payable July 25, 1885, with interest at 8 per cent. per annum. Those notes were thereafter, and before maturity, transferred for value, and were, after the commencement of this suit, paid in full by the defendant to the legal holders thereof. On and prior to July 14, 1885, the plaintiffs delivered to the defendant, and he accepted, the ranch and ranch outfit, as called for and described in the contract, and he took possession of the same; and, at the same time, they delivered to him 4,854 head of the cattle called for by the contract, which were accepted by him, and were the only cattle delivered by them to him on the contract. There was a deficiency of 7,646 cattle in the number called for by the contract. This deficiency, at the rate of $25 per head, amounted to $191,150, which the de endant was entitled to have credited upon the $400,000 which he was, by the contract, to pay to the plaintiffs for the ranch, ranch outfit, and cattle. The failure of the plaintiffs to deliver the full number of cattle called or by the contract was by reason of heavy losses of cattle sustained by them, from cold and starvation, during the winter of 1884 and the spring of 1885, whereby their herd was reduced from about the number called for by the contract to the number actually delivered. When they made the contract they in good faith believed that they had, and should be able to deliver to the defendant, the full number of 12,500 head, and were not aware of the losses until they attempted to round up or collect their cattle, at about the time the delivery was to be made. Neither the defendant nor his agents or employes had any information that the plaintiffs would not be able to deliver the 12,500 head of cattle until notified by the latter, on the 14th of July, 1885, that they had delivered all the cattle belonging to the ranch, and could not deliver any more. Before the 1st of July, 1885, the defendant had caused a deed to be made out, and signed and acknowledged by himself and his wife, conveying to the plaintiffs the 84 acres of land in Cook county, Ill., mentioned in the contract; but there was an apparent incumbrance upon the land as shown by the record of land titles in Cook county by a trust-deed dated June 28, 1878, to one Manning, as trustee, to secure the payment of $40,000 from the defendant to one Sawyer, and that trust-deed was not released and discharged until December 5, 1885; but in fact the indebtedness secured thereby had been fully paid on or before July 1, 1885. On the 15th of July, 1885, the plaintiffs did not transfer or offer to transfer to the defendant the two leases mentioned in the contract; and the parties agreed to meet at Kansas City, Mo., within a few days after the said 15th of July, and then endeavor to adjust and settle all differences between them in regard to the contract. They did so meet in Kansas City, on the 17th of July, and the defendant then offered to convey to the plaintiffs the 84 acres of land in Cook county, on their paying to him $59,150, which conveyance the plaintiffs refused to accept on those terms. Thereupon the defendant, to avoid litigation and as a compromise, as he said, offered to convey to the plaintiffs 54 acres of the Cook county land, in full payment of the balance due from him to them for the ranch and cattle. The plaintiffs refused to accept such offer, but the defendant did not tender any deed, either of the whole or of any part of the land. After such delivery of the ranch, ranch property, and cattle to the defendant, the plaintiffs insisted that there was due to them from him $108,850, which should be divided into two equal amounts and secured by the notes of the defendant, one payable on July 1, 1886, and the other on November 1, 1886, with interest on each note at the rate of 8 per cent. per annum. The plaintiffs also insisted that the sum of $191,150, to be credited to the defendant on the $400,000 purchase price to be paid for the ranch and cattle, should be applied as a credit to extinguish the payment to be made in the cook county land. but the defendant refused to give the notes for $108,850, as demanded bY the plaintiffs, and insisted that there was no cash payment or money due from him to them. The defendant declined to settle unless the plaintiffs would take in settlement the Cook county land. Thereupon the defendant, by way of compromise, offered to the plaintiffs that if they would repay to him the $25,000 cash paid by him, and would return to him his notes for $75,000, given under the contract, he would surrender to them the possession of all property delivered, throw up the contract, and stand the loss of all moneys, amounting to about $5,000, expended by him on the ranch. The plaintiffs declined this offer, stating that they had used the money and parted with the note , and that the acceptance of the offer was entirely beyond their control. At the meeting in Kansas City the plaintiffs advised the defendant of the amount which they had advanced for rent on the leases named in the contract subsequently to July 15, 1885, and which was to be refunded by the defendant; and thereafter the latter paid said rental, and the plaintiffs duly transferred the leases to him. In the preliminary negotiations between the parties, which resulted in the contract, the defendant insisted that he would not purchase the ranch and cattle at the price of $400,000, unless the plaintiffs would take his Cook county land at the sum of $168,000, and the plaintiffs insisted that they would not sell for $400,000, unless they could receive about $250,000 in money, peing willing to take the balance of such purchase price in the 84 acres of Cook county land. Before the contract was entered into, and while the negotiations for it were going on, the plaintiff Bennett visited Chicago and examined the Cook county land. On these findings of fact, the court found against the defendant, and he made a motion to set aside such finding, and for a new trial. The motion was denied and the defendant excepted. He then moved in arrest of judgment; but the motion was denied, and he excepted. The court then rendered judgment upon the findings in favor of the plaintiffs and against the defendant, and the latter excepted. There is no exception by the defendant to any ruling of the court in the course of the trial, and the only question open for consideration is whether the judgment is supported by the special findings. The opinion of the circuit court, held by Judge BLODGETT, accompanying its findings and forming part of the record, is reported as Bennett v. McGillan, 28 Fed. Rep. 411. The opinion states that the controversy in the case is as to whether the plaintiffs were bound to accept the Cook county land at the price of $168,000, and make up in cash the deficiency in that price, or whether the plaintiffs could insist that the credit for the $191,150 shortage on the cattle should be applied first to extinguish the payment of $168,000 to be made in Cook county land, and then upon the amount to be secured by the $132,000 of notes to fall due in July and November, 1886, thus leaving a balance of $108,150 due to the plaintiffs; and that the suit to recover that balance was brought on the ground that, the defendant having refused to give his notes, such balance became at once a money demand. The court took the view that, when the actual count of the cattle showed a shortage of 7,646 head in the number necessary to make up the 12,500, the defendant might properly have refused to accept the property, and have put the plaintiffs in default on their part of the contract; but that he elected to accept what the plaintiffs had to deliver, and must be held to have assented thereby to such readjustment of the terms of the contract as was made necessary by the changed facts; that the contract gave to the defendant the option of paying $168,000 of the purchase money by conveying the Cook county land; that if the defendant declined to make the conveyance, or was unable to give a good title, the $168,000 would at once become a money payment, payable in cash on the 15th of July, 1885; and that, if the plaintiffs delivered the whole number of 12,500 cattle, they would be entitled to the two notes of $66,000 each, and also to a deed of the Cook county land, or to the $168,000 in cash, in case the defendant should refuse or be unable to make a deed. The court was therefore of opinion that the $168,000 was to be treated as a present or cash payment; that the deficiency in cattle, of $191,150, being 7,646 head at $25 per head, which was to be credited to the defendant, should be appropriated in liquidation of the cash payment of $168,000, such credit being thus applied to the cash payment which the defendant would be called upon to make in case he should be unable to make the title at the time called for; t at the $168,000 to be liquidated by the land was a present payment, whether made in money or land; that if, by the terms of the contract, the defendant was entitled to a credit equal to or exceeding the $168,000, that credit should be applied thereon, rather than upon the deferred payments to be evidenced by notes, because the $168,000 was a payment down, to be made on the 15th of July, 1885; that, therefore, as $100,000 had been paid in cash on the $400,000 purchase price, leaving $300,000 due, a credit thereon of the $191,150 deficiency in cattle left due to the plaintiffs $108,850, for which amount the court held that the defendant should have given his notes, payable in July and November, 1886, with interest at 8 per cent. per annum; and that, as he declined to give such notes, or any notes, such balance became a present demand, for which the plaintiffs could sue. It therefore ordered judgment for the plaintiffs for $108,850, with interest at 6 per cent. from July 15, 1885. Although, as appears by the bill of exceptions, the defendant at the trial introduced evidence, under the objections and exceptions of the plaintiffs, of the circumstances attending the execution of the contract, of the relative situation of the parties, and of the negotiations, correspondence, and interviews between them and their agents, leading up to its execution, to enable the court better to understand and construe the contract, the defendant now seriously alleges as error the admission of such parol evidence. The point is not tenable.* It appears, from the findings of fact, that the court considered the evidence so introduced by the defendant, and he cannot now object to it. We are of opinion that the conclusion of law of the circuit court from the findings of fact was correct. Of course, the credit of $191,150 for the 7,646 head of cattle deficient, at $25 per head, was not intended by the contract to be applied on the cash payment of $25,000, made April 16, 1885, or on the payment of $75,000 provided for by the promissory notes made April 16, 1885, and due July 25, 1885. The question of a shortage in the number of cattle was not to be determined, and was not determined, before the 15th of July, 1885, and the contract does not provide for repaying any part of the $100,000. Therefore the credit of $191,150 could be applied only on the $300,000 remaining unpaid on the 15th of July, 1885. On that day the payment of $168,000 was to be made. By the contract, if there was an excess of cattle over 12,500 head, the payment to be made by the defendant on that day would be more than $168,000, (exclusive of the $132,000 payable in 1886,) but that excess was to be paid in cash. If there was a shortage in the number of cattle, and a credit to be made to the defendant therefor on the $400,000 purchase price, the amount of that credit was to be made on the 15th of July, 1885, the same day the $168,000 was to be paid. It is clear, therefore, that the amount of the excess was to be added to that payment or the amount of the credit was to be deducted therefrom. The payment to be made on the 15th of July, 1885, would be greater or less than the $168,000, as the number of cattle exceeded or fell short of 12,500 head. The $108,850 became due July 15, 1885, and the defendant, according to the terms of the contract, ought then to have given his notes therefor, payable, one-half July 1, 1886, and one-half November 1, 1886. He refused to give such notes. As the payments to be made July 1, 1886, and November 1, 1886, were not due on July 15, 1885, and a vendors' lien was expressly reserved in respect of those payments, there is no solution of the problem, except to deduct from the $191,150 deficiency in cattle the $168,000 payment to be made in land or money, July 15, 1885, leaving $23,150, and to deduct that from the $132,000 payable in 1886, leaving $108,850 due to the plaintiffs, with interest from July 15, 1885, for which sum judgment was had. On the facts found, showing that the defen ant was not prepared or able to deliver to the plaintiffs, on the 15th of July, 1885, a deed for the 84 acres of land in Cook county, Ill., the $168,000 became on that day a cash payment. The judgment of the circuit court is affirmed.
132.US.295	In Ohio it is the duty of a municipal corporation to keep the streets of the municipality in order; and a person receiving in3uries in consequence of its neglect so to do, has a right of action at the common law for the damage caused thereby. A building permit by municipal authorities authorizing the occupation of part of a public street as a depository for building materials, and requiring proper lights at nght to indicate their locality, does not relieve the municipality from the duty of exercising a reasonable diligence to prevent the holders of the permit from occupying the street in such a way as to endanger passers-by m their proper use of it. The case as stated by the court in its opinion was as follows	By section 2640, Rev. St. Ohio, tit. 'Municipal Corporations,' it is provided that 'the council shall have the care, supervision, and control of all public high ways streets, avenues, alleys, sidewalks, public grounds, and bridges within the corporation, and shall cause the same to be kept open and in repair, and free from nuisance.' 1 Rev. St. Ohio, (Giaugue's Ed.) tit. 12, div. 8, c. 13, p. 600. The city concedes that, if there was any liability at all on its, part, the charge of the court correctly announced the principles of law applicable to the case. If the obstruction in question was on Bank street unnecessarily, or for an unreasonable length of time, or was there without proper lights or other guards to indicate its locality, and such condition of the street at the time the plaintiff was injured existed with the knowledge of the city, either actual or constructive, for a sufficient length of time to remedy it by the exercise of proper diligence, the liability of the city cannot be doubted, in view of the decisions of the supreme court of Ohio and of this court; unless, as contended by the defendant, the plaintiff, notwithstanding the negligence of the city in not keeping the street open and free from nuisance, could, by due care, have avoided the injuries he received. In the case of Cardington v. Frederick, 21 N. E. Rep. 766, which will appear in 46 Ohio St., the supreme court of Ohio construed the above section in connection with section 5144, which, among other things, provides that an action for a nuisance shall abate by the death of either party. That was an action against an incorporated village founded upon a petition alleging that a street used by the public was so unskillfully and negligently constructed and left by the defendant as to be in an unsafe condition, and allowed to become out of repair and obstructed by the rubbish and refuse of the village, so that it was highly dangerous, and that the plaintiff, while lawfully passing along the street, accidentally, and without fault on her part, was precipitated down an embankment, whereby she was greatly bruised and injured. The court held the action to be one for a nuisance, and, in harmony with the principles announced upon this general subject in Barnes v. District of Columbia, 91 U.S. 540, 547, said: 'The statute (section 2640, Rev. St.) gives to municipal corporations the care, supervision, and control of all public highways, etc., and requires that the same shall be kept open, and in repair, and free from nuisance. In effect, it is a requirement that the corporation shall prevent all nuisances therein, and when by allowing a street to become so out of repair as to be dangerous the corporation itself maintains a nuisance, and a suit to recover for injuries thereby occasioned is for damage arising from a nuisance of 'for a nuisance.' The statute does not give a remedy; it but enjoins the duty. And when a duty to keep streets in repair is enjoined on municipal corporations, either by a statute in the form now in force, or by a provision which authorizes them to pass ordinances for regulating streets and keeping them in repair, and gives power to levy taxes for that purpose, and presumably to obtain a fund for satisfying claims for damages, a right of action for damages caused by such neglect arises by the common law.' This language leaves no room to doubt the liability of the city of Cleveland for the damages sustained by the plaintiff if it was guilty of the negligence charged in the petition, and if the plaintiff was not himself guilty of negligence that materially contributed to his injury. The fact that the permits to Rosenfeld and Kostering only authorized them to occupy one-half of the street for the purpose of depositing building materials thereon, and required them to indicate the locality of such materials by proper lights, during the whole of every night that they were left in the street, did not relieve the city of the duty of exercising such reasonable diligence as the circumstances required, to prevent the street from being occupied by those parties in such a way as to endanger passers-by in their use of it in all proper ways. Whether that degree of diligence was exercised by the city, through its agents; whether its officers had such notice or knowledge of the use of Bank street, in the locality mentioned, by the parties to whom the above permits were granted, as was inconsistent with the safety of passers-by using it with due diligence; whether, in fact, the materials and obstructions placed by Kostering on the street were sufficiently indicated by signal lights or otherwise, during the night-time; and whether the plaintiff was himself guilty of such negligence as contributed to his injury,—were questions fairly submitted to the jury, and are not open for consideration in this court. The objection that the petition did not state facts constituting a good cause of action is not well taken. The allegations were broad enough to admit proof of such knowledge or notice upon the part of the city of the condition of Bank street as would fix its liability to the plaintiff. If the defendant desired a fuller statement of the cause of action, the proper course was to indicate its wishes by a motion to require the plaintiff to make more specific his allegations as to negligence. The motion to exclude all evidence upon the part of the plaintiff and the motion for a verdict in behalf of the defendant were properly denied. The question of negligence, in all of its aspects, was peculiarly for the jury. As no error of law was committed at the trial, the judgment is affirmed.
132.US.487	When the plaintiff in a suit in equity does not waive an answer under oath, the defendant's answer, directly responsive to the bill, is evidence in his behalf. The statute of Pennsylvania providing that a party in a suit in equity may be examined as a witness by the other party as if under cross-examination, and that his evidence may be rebutted by counter testimony, has no application to suits in equity in courts of the United States held within the State. The party offering m a court of the United States in Pennsylvania a deposition taken under that statute, makes the witness his own, and is not at liberty to contend that he is not entitled to credit. A decision of a District Court on a question of fact, affirmed by the Circuit Court, will not be disturbed by this court unless the error is clear.	By two deeds, one dated January 22, 1876, reciting a consideration of $10,000, and the other, dated January 26, 1876, reciting a consideration of $18,000, and both executed, acknowledged, and delivered to the grantees on the last-named day, John Dippold and wife conveyed to Philip Fabel and Kate Fabel, his wife, the latter being a daughter of the grantors, two tracts of land in the county of Beaver, state of Pennsylvania. Both deeds were recorded in the proper office, but not until the 16th day of February, 1878. On the 1st of March, 1878, John Dippold, John H. Dippold, Martin Dippold, and Jacob H. Dippold, doing business under the name of 'John Dippold & Sons,' were adjudged bankrupts by the district court of the United States for the western district of Pennsylvania. Their assignees in bankruptcy, duly appointed and qualified, were the present appellants, who, June 13, 1879, brought this suit in the same court against the appellees. The bill alleged that neither of the grantees possessed means sufficient for the purchase of these lands, and that the deeds to them were executed with the intent and purpose of hindering, delaying, and defrauding the creditors of John Dippold, and to prevent the lands from going to, and being distributed by, his assignees in bankruptcy. It also alleged a conspiracy and combination between Dippold and the grantees, pursuant to which the former was to make said conveyances, in order that the lands could be held by the grantees for the benefit of themselves and of John Dippold, discharged from the claims of his creditors; and that the deeds were a mere contrivance between him and them, whereby the lands 'were to be in such condition, as to the title thereof, that if at any time the said John Dippold should become seriously and financially embarrassed it might be made to seem' that he 'was not the owner of said properties.' It further alleged that in January, 1876, John Dippold, as a member of his firm, was largely engaged in business, borrowing large sums of money down until the date of the petition in bankruptcy, and that during all that time he and the respondents conspired to have it believed by the public generally, and by creditors dealing with him, that he was the owner of these lands, and, by reason of such belief, creditors would be, and were, induced to trust and confide in his financial responsibility. The relief sought was a decree declaring the deeds null and void, fraudulent as to creditors, and vesting no right in the grantees, as against Dippold's creditors and assignees in bankruptcy, and requiring Fabel and wife to release and convey their apparent title to the assignees in bankruptcy. The bill was sworn to, and did not waive the oath of the defendants to their respective answers. The answers, which were under oath, besides putting in issue all the material allegations of the bill, averred that the transactions evidenced by the deeds were bona fide; that the deeds were executed and delivered at their respective dates; and that the consideration named in each was paid by the grantees, to Dippold, in money. The district court dismissed the bill, with costs, and a similar decree was rendered upon appeal in the circuit court. The only error assigned is the refusal of the circuit court to declare the deeds to Philip Fabel and his wife to be fraudulent and void as to the creditors and assignees in bankruptcy of John Dippold. This case does not present any difficult question of law. Its determination depends entirely upon the special facts and circumstances disclosed by the evidence. Conceding that the case was an uncommon one, and that some of its circumstances tended to excite suspicion as to the integrity of the transaction between Dippold and his grantees, the conclusion of the district court was that the clear weight of the evidence was on the side of the defendants, and that the bill should be dismissed. It was accordingly so decreed. Dravo v. Fabel, 25 Fed. Rep. 116. A similar decree was passed in the circuit court.1 The answers of the defendants, being directly responsive to the bill, are evidence in their behalf, the plaintiffs not having waived, as they might have done, answers under oath. Conley v. Nailor, 118 U. S. 127, 134, 6 Sup. Ct. Rep. 1001; Equity Rule 41, as amended. Besides, the depositions upon which the plaintiffs must rely to sustain the charge of fraud are those of the principal defendants, John Dippold and Philip Fabel. These depositions were taken and read by the plaintiffs. It is true they were taken 'as under cross-examination,' pursuant to a statute of Pennsylvania which declares that 'a party to the record of any civil proceeding in law or equity, or a person for whose immediate benefit such proceeding is prosecuted or defended, may be examined as if under cross-examination, at the instance of the adverse party, or any of them, and for that purpose may be compelled, in the same manner, and subject to the same rules for examination as any other witness, to testify; but the party calling for such examination shall not be concluded thereby, but may rebut it by counter-testimony.' 1 Bright. Purd. Dig. 728. But that statute has no application to suits in equity in the courts of the United States. The act of congress providing that the practice, pleadings, forms, and modes of proceedings in civil causes in the courts of the United States shall conform, as near as may be, to the practice, pleadings, forms, and modes of proceedings existing at the time in like causes in the courts of record of the state, expressly excepts equity and admiralty causes. 17 St. 197, c. 255, § 5; Rev. St. § 914. So that, when the plaintiffs used the depositions of Dippold and Fabel, taken 'as under cross-examination,' they made those parties their own witnesses. While the plaintiffs were not concluded by their evidence, and might show they were mistaken, it could not be properly contended by the plaintiffs that they were unworthy of credit. The evidence must be given such weight as, under all the circumstances, it is fairly entitled to receive. The case comes within the ruling in Lammers v. Nissen, 25 Lawyer's Co-Op. Sup. Ct. Rep. 562, where the finding of the court of original jurisdiction upon a mere question of fact was affirmed by the supreme court of the state. Chief Justice WAITE said: 'Under such circumstances, we ought not to disturb the judgment of the state court unless the error is clear. No less stringent rule should be applied in cases of this kind than that which formerly governed in admiralty appeals, when two courts had found in the same way on a question of fact.' Without stating the evidence in detail, we content ourselves with saying that, upon a careful review of all the circumstances disclosed by the record, we do not feel justified in disturbing the conclusion reached by the district and circuit courts upon mere questions of fact. Decree affirmed.
131.US.162	Where a case is tried by a Circuit Court, on the written waiver of a jury, and there is a bill of exceptions which sets forth the facts which were proved, that is a sufficient special finding of facts to authorize this Court, under § 700 of the Revised Statutes, to determine whether the facts found are sufficient to support the judgment. A statute of Texas provided that bonds to be issued by a city, for erecting water works, should be signed by the mayor, and forwarded by him to the state comptroller for registration. Bonds issued for that purpose were dated January 1, 1884, but not signed till July 3, 1884, and then were not signed by the mayor, but, under a resolution of the city council, were signed by a private citizen, who had been mayor on January 1, 1884, but had gone out of office in April, 1884, and been succeeded by a new mayor, and who appended the word "mayor" to his signature. The bonds stated on their face that they were authorized by a statute of Texas, and an ordinance of the city, specifying both. In a suit against the city, to recover on coupons cut from the bonds, brought by a bona fide holder of them; Held, (1) No one could lawfully sign the bonds but the person who was mayor of the city when they were signed; (2) The city council had no authority to provide for their signature by any other person; (3) The city was not estopped as against the plaintiff, from showing the facts as to the signature of the bonds; (4) The bonds were invalid, The case distinguished from Weyauwega v. Ayling, 99 U. S. 112, and controlled by Anthony v. County of Jasper,1 01 U. S. 693.	Article 422 of the statute provides that the bonds shall be signed by the mayor. This clearly means that they shall be signed by the person who is mayor of the city when they are signed, and not by any other person. The legislature having declared who shall sign them, it was not open to the city council to provide that they should be signed by some other person. Article 423 of the statute provides that it shall be the duty of the mayor, whenever any bonds are issued, to forward them to the comptroller of public accounts of the state, for registry. They could not be issued until they were properly signed by a person who was the mayor at the time they were signed, and the comptroller could receive them lawfully for registry only from such mayor. So, also, by article 424, it is made the duty of the same mayor, and not that of any other person, at the time of forwarding the bonds to the comptroller for registration, to furnish him with the statement specified in that article. No other person than such mayor could furnish the comptroller with such statement. The complete answer to the suggestion that the plea does not negative the idea that the bonds may have been signed by a person authorized by the defendant to sign them is that, in view of the statute, the defendant had no power to authorize any other person to sign them than the person who was mayor at the time they were signed. The answer to the suggestion that the plea does not negative the idea that they may have been signed by a person authorized by law to sign them is that, in view of the provisions of the statutes of Texas referred to, and of the allegations of the plea, it was for the plaintiff to aver or show, in reply to the plea, that the person who signed them, or some other person than the person who was mayor at the time they were signed, was authorized by law to sign them. It is contended for the plaintiff that, as Hodge, who signed the bonds as mayor, was the mayor on January 1, 1884, the date of the bonds, and the plaintiff was an innocent purchaser of them for value, he was not bound to look beyond the bonds themselves, and the enabling acts authorizing their issue, and that, if there was lawful authority to issue them, and the city appeared to have acted upon that authority, he was not obliged to inquire further, no matter what irregularity characterized the acts of the officers who issued them on behalf of the city; that the face of the bonds referred him to article 420 of the Statutes, and to the ordinance of September 13, 1883; that an examination of the statute and the ordinance would show authority to issue the bonds; that the records of the city would show that the persons who signed the bonds were the mayor and the secretary of the city on the 1st of January, 1884, the date of the bonds; that the indorsement on each bond would show that it had been registered by the comptroller; and that he had a right to presume that the bonds had been forwarded to the comptroller by the mayor, as provided by the statute, or otherwise the comptroller would not have registered them. But we have always held that even bona fide purchasers of municipal bonds must take the risk of the official character of those who execute them. An examination of the records of the city in regard to the issuing of the bonds would have disclosed the fact that the bonds had not been signed and issued under h e ordinance of September 13, 1883, until July 3, 1884; that W. N. Hodge was not mayor on that day; and that the person who then signed the bonds as mayor was a private citizen. In Anthony v. County of Jasper, 101 U. S. 693, municipal bonds were signed and issued in October, 1872, on a subscription made in March, 1872, to the stock of a railroad company, and bore date the day of the subscription. The presiding justice who signed the bonds did not become such until October, 1872. Thus, the person who was in office when the bonds were actually signed, signed them, but they were antedated to a day when he was not in office. In the present case, the bonds were not signed by an officer who was in office when they were signed, but by a person who was in office on the antedated day on which they bore date. In the Jasper County Case there was a false date inserted in the bonds in order to avoid the effect of a registration act which took effect between the antedated date and the actual date of signing. In the present case there was a false signature. But the principle declared in the Jasper County Case is equally applicable to the present case. It was there said by Chief Justice WAITE, delivering the judgment of the court, (page 698:) 'The public can act only through its authorized agents, and it is not bound until all who are to participate in what is to be done have performed their respective duties. The authority of a public agent depends on the law as it is when he acts. He has only such powers as are specifically granted, and he cannot bind his principal under powers that have been taken away, by simply antedating his contracts. Under such circumstances, a false date is equivalent to a false signature; and the public, in the absence of any ratification of its own, is no more estopped by the one than it would be by the other. After the power of an agent of a private person has been revoked, he cannot bind his principal by simply dating back what he does. A retiring partner, after due notice of dissolution, cannot charge his firm for the payment of a negotiable promissory note, even in the hands of an innocent holder, by giving it a date within the period of the existence of the partnership. Antedating, under such circumstances, partakes of the character of a forgery, and is always open to inquiry, no matter who relies on it. The question is one of the authority of him who attempts to bind another. Every person who deals with or through an agent assumes all the risks of a lack of authority in the agent to do what he does. Negotiable paper is no more protected against this inquiry than any other. In Bayley v. Taber, 5 Mass. 286, it was held that when a statute provided that promissory notes of a certain kind, made or issued after a certain day, should be utterly void, evidence was admissible on behalf of the makers to prove that the notes were issued after that day, although they bore a previous date. * * * Purchasers of municipal securities must always take the risk of the genuineness of the official signatures of those who execute the paper they buy. This includes, not only the genuineness of the signature itself, but the official character of him who makes it.' This ruling has been since followed. In Bissell v. Spring Valley Tp., 110 U. S. 162, 3 Sup. Ct. Rep. 555, where bonds were issued by a township in payment of a subscription to railway stock, under a statute which made the signature of a particular officer essential, it was held that without the signature of that officer they were not the bonds of the township, and that the municipality was not estopped from disputing their validity by reason of recitals in the bond, setting forth the provisions of the statute, and a compliance with them. The same principle is recognized in Bank v. Porter Tp., 110 U. S. 608, 618, 619, 4 Sup. Ct. Rep. 254, and Bank v. Bergen Co., 115 U. S. 384, 390, 6 Sup. Ct. Rep. 88. The case of Weyauwega v. Ayling, 99 U. S. 112, is cited for the plaintiff. In that case the bonds of a town bore date June 1st, and were signed y A. as chairman of the board of supervisors, and by B. as town-clerk, and were delivered by A. to a railroad company. When sued on the coupons by a bona fide purchaser of the bonds for value before maturity, the town pleaded that the bonds were not in fact signed by B. until July 13th, at which date he had ceased to be town-clerk, and his successor was in office. It was held, Chief Justice WAITE delivering the opinion of the court, that the town was estopped from denying the date of the bonds, because, in the absence of evidence to the contrary, it must be assumed that the bonds were delivered to the company by A. with the assent of the then town-clerk. In Anthony v. County of Jasper the court distinguished that case from Weyauwega v. Ayling, and said that in the latter case it held that 'the town was estopped from proving that the bonds were actually signed by a former clerk after he went out of office, because the clerk in office adopted the signature as his own when he united with the chairman in delivering the bonds to the railroad company,' while in the former case the bonds were not complete in form when they were issued, and it was only by a false date that they were apparently so. In the present case it appears affirmatively by the bill of exceptions that the person who was mayor of the city at the time the bonds were signed took no part in signing, delivering, or issuing them; that they were not complete in form when they were issued, because they were not signed by the then mayor; and that it was only by a false date that they were then apparently complete in form. Hence, the present case is not like Weyauwega v. Ayling, but is like Anthony v. County of Jasper. This case is analogous to that of Amy v. City of Watertown, No. 1, 130 U. S. 301, ante, 530, where the statute required process to be served on the city by serving it on the mayor, and it was not so served, and it was held that there could be no substituted service, and no legal service without service on the mayor. Regarding these views as decisive of this case, we forbear discussing other questions on which it is maintained that the ruling of the circuit court was correct. Judgment affirmed.
130.US.699	If an attachment of property in an action in a state court is dissolved by the defendant's entering into a recognizance, with sureties, to pay, within ninety days after any final judgment against him, the amount of that judgment; and the defendant, after verdict against him, obtains his discharge in bankruptcy upon proceedings commenced more than four months after the attachment; the Bankrupt Act does not prevent the state court from rendering judgment against him on the verdict, with a perpetual stay of execution, so as to leave the plaintiff at liberty to proceed against the sureties.	The question presented by this writ of error is quite distinct from that which arose when the case was before this court at a former term, as reported in 107 U. S. 631, 2 Sup. Ct. Rep. 404. The only point then decided was that the defendant, on his application made after verdict and before judgment, was entitled to a stay of proceedings to await the determination of the court in bankruptcy upon the question of his discharge. The question not then passed upon, and now presented, is whether, since he has obtained his discharge in bankruptcy, there is anything in the provisions of the bankrupt act to prevent the state court from rendering judgment on the verdict against him, with a perpetual stay of execution, so as to prevent the plaintiffs from enforcing the judgment against him, and leave them at liberty to proceed against the sureties in the bond or recognizance given to dissolve an attachment made more than four months before the commencement of the proceedings in bankruptcy. Such attachments being recognized as valid byt he bankrupt act, (Rev. St. § 5044,) a discharge in bankruptcy does not prevent the attaching creditors from taking judgment against the debtor in such limited form as may enable them to reap the benefit of their attachment. When the attachment remains in force, the creditors, notwithstanding the discharge, may have judgment against the bankrupt, to be levied only upon the property attached. Peck v. Jenness, 7 How. 612, 623; Doe v. Childress, 21 Wall. 642. When the attachment has been dissolved, in accordance with the statutes of the state, by the defendant's entering into a bond or recognizance, with sureties, conditioned to pay to the plaintiffs, within a certain number of days after any judgment rendered against him on a final trial, the amount of that judgment, the question whether the state court is powerless to render even a formal judgment against him for the single purpose of charging such sureties, or, in the phrase of Chief Justice WAITE in Wolf v. Stix, 99 U. S. 1, 9, whether 'the judgment is defeated by the bankruptcy of the person for whom the obligation is assumed,' depends, not upon any provision of the bankrupt act, but upon the extent of the authority of the state court under the local law. Whether that authority is exercised under the settled practice of the court, as in Illinois, or only by virtue of an express statute, as in Massachusetts, there is nothing in the bankrupt act to prevent the rendering of such a judgment. The bond or recognizance takes the place of the attachment as a security for the debt of the attaching creditors; they cannot dispute the election given to the debtor by statute, of substituting the new security for the old one; and the giving of the bond or recognizance, by dissolving the attachment, increases the estate to be distributed in bankruptcy. The judgment is not against the person or property of the bankrupt, and has no other effect than to enable the plaintiff to charge the sureties, in accordance with the express terms of their contract, and within the spirit of that provision of the bankrupt act which declares that 'no discharge shall release, discharge, or affect any person liable for the same debt for or with the bankrupt, either as partner, joint contractor, indorser, surety, or otherwise.' Rev. St. § 5118; In re Albrecht, 17 N. B. R. 287; Hill v. Harding, 116 Ill. 92, 4 N. E. Rep. 361; Bank v. Higgins, 124 Mass. 115. If the bond was executed before the commencement of proceedings in bankruptcy, the discharge of the bankrupt protects him from liability to the obligees, so that, in an action on the bond against him and his sureties, any judgment recovered by the plaintiffs must be accompanied with a perpetual stay of execution against him; but his discharge does not prevent that judgment from being rendered generally against them. Wolf v. Stix, above cited. If the sureties should ultimately pay the amount of any such judgment, and thereby acquire a claim to be reimbursed by their principal the amount so paid, which is a point not now in issue, it would be because his liability to them upon such a claim did not exist at the time of the commencement of the proceedings in bankruptcy, and therefore could not be proved in bankruptcy nor barred by the discharge, and consequently would not be affected by any provision of the bankrupt act. The courts of Illinois, in the judgment rendered in this case, having assumed the validity of the defendant's discharge in bankruptcy, he has not been prejudiced by the rulings denying leave to file after verdict a formal plea of the discharge in bankruptcy, and admitting in evidence an unverified copy of the discharge, and refusing his request for a trial by jury upon that issue. Judgment affirmed.
131.US.36	An appeal lies to this court from a jud gnent against the United States rendered under the jurisdiction conferred on District Courts by the act of March 3, 1887, 24 Stat. 505, c. 359, without regard.to the amount of the judgment.	On the 3d of March, 1887, an act of congress was approved, entitled 'An act to provide for the bringing of suits against the government of the United States,' (24 St. 505,) of which the first, second, ninth, and tenth sections are as follows: 'That the court of claims shall have jurisdiction to hear and determine the following matters: First. All claims founded upon the constitution of the United States or any law of congress, except for pensions, or upon any regulation of an executive department, or upon any contract, expressed or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable: provided, however, that nothing in this section shall be construed as giving to either of the courts herein mentioned jurisdiction to hear and determine claims growing out of the late civil war, and commonly known as 'war claims,' or to hear and determine other claims, which have heretofore been rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same. Second. All set-offs, counter-claims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the government of the United States against any claimant against the government in said court: provided, that no suit against the government of the United States shall be allowed under this act unless the same shall have been brought within six years after the right accrued for which the claim is made. 'Sec. 2. That the district courts of the United States shall have concurrent jurisdiction with the court of claims as to all matters named in the preceding section where the amount of the claim does not exceed one thousand dollars, and the circuit courts of the United States shall have such concurrent jurisdiction in all cases where the amount of such claim exceeds one thousand dollars and does not exceed ten thousand dollars. All causes brought and tried under the provisions of this act shall be tried by the court without a jury.' 'Sec. 9. That the plaintiff or the United States, in any suit brought under the provisions of this act, shall have the same rights of appeal or writ of error as are now reserved in the statutes of the United States in that behalf made, and upon the conditions and limitations therein contained. The modes of procedure in claiming and perfecting an appeal or writ of error shall conform in all respects, and as near as may be, to the statutes and rules of court governing appeals and writs of error in like causes. 'Sec. 10. That when the findings of fact and the law applicable thereto have been filed in any case, as provided in section six of this act, and the judgment or decree is adverse to the government, it shall be the duty of the district attorney to transmit to the attorney general of the United States certified copies of all the papers filed in the cause, with a transcript of the testimony taken, the written findings of the court, and his written opinion as to the same; whereupon the attorney general shall determine and direct whether an appeal or writ of error shall be taken or not; and, when so directed, the district attorney shall cause an appeal or writ of error to be perfected in accordance with the terms of the statutes and rules of practice governing the same: provided, that no appeal or writ of error shall be allowed after six months from the judgment or decree in such suit. From the date of such final judgment or decree interest shall be computed thereon at the rate of four per centum per annum, until the time when an appropriation is made for the payment of the judgment or decree.' Under that act Schofield filed his petition against the United States in the district court of the United States for the district of Maryland August 20, 1887, and judgment was rendered in his favor on the 6th day of October, 1887, in the sum of $25 and costs. On the 16th day of January, 1888, an appeal was prayed by the United States to this court and allowed, and the transcript filed in the clerk's office October 27, 1888. Davis filed his petition in the same court September 2, 1887, and recovered judgment November 18, 1887, in the sum of $25 and costs, from which an appeal was prayed to this court January 16, 1888, and the transcript filed in the clerk's office October 27, 1888. A motion to dismiss is filed in each of these cases on behalf of the appellees, respectively, upon the ground that an appeal will not lie to this court from a district court performing the appropriate duty of a district court, and that this court has not jurisdiction to re-examine judgments of circuit or district courts since the act of February 16, 1875, (18 St. 316,) in such actions, unless the matter in dispute shall exceed the sum or value of $5,000, exclusive of costs, and 'that the United States are not entitled to a writ of error or appeal if the same remedy would not be afforded under similar circumstances to a private party.' By the act under which these suits were brought the district court was given concurrent jurisdiction with the court of claims as to matters of which that court had jurisdiction, 'where the amount of the claim does not exceed one thousand dollars,' and the same right of appeal was given to the plaintiff or the United States as 'now reserved in the statutes of the United States in that behalf made.' Section 707 of the Revised Statutes reads: 'An appeal to the supreme court shall be allowed, on behalf of the United States, from all judgments of the court of claims adverse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thousand dollars, or where his claim is forfeited to the United States by the judgment of said court, as provided in section one thousand and eighty-nine.' By section 708 such appeals must be taken within 90 days after the judgment is rendered, but this period is enlarged to 6 months by section 10 of the act in question. Inasmuch as the object of the latter act was to enable the district and circuit courts to exercise concurrent jurisdiction with the court of claims in respect to suits against the United States, as therein provided, in our judgment the right of appeal reserved to the government 'in the statutes of the United States in that behalf made,' before the enactment of this act, was the right of appeal reserved in the statutes relating to the court of claims, and, as that right could be exercised by the United States in the instance of any judgment of the court of claims adverse to the United States, it follows that the same right can be exercised by the United States in any case of the prosecution of a claim in the district or circuit courts of the United States under said act. The result is that the motions to dismiss in these cases must be overruled.
130.US.626	Letters patent No. 281,553, granted to George MI.P eters, July 17, 1883, for an "improvement in dies for making dash-frames," are invalid, for want of patentable invention.	This is a suit in equity, brought in the circuit court of the United States for the Southern District of Ohio, by George M. Peters against the Active Manufacturing Company, a corporation, founded on the alleged infringement of letters patent No. 281, 553, granted to said Peters, July 17, 1883, on an application filed December 7, 1880, for an 'improvement in dies for making dash-frames.' A dash-frame is made of metal, and is to be used in constructing a dash-board for a carriage or other vehicle. The defenses set up in the answer are want of novelty, non-infringement, and also that the devices described and claimed in the patent were, before the alleged invention thereof of by Peters, old and well-known in forging, welding, and other metal-working, and that it required no invention to apply or adapt such devices to the old form and construction of dash-frames. Issue was joined, proofs were taken, and the circuit court, in its decree, found that the patent was 'void for want of invention,' and dismissed the bill. We concur in that conclusion. The specification of the patent says: 'The principal object of my invention is to provide an efficient and useful method of welding the end bars of a metal dash-frame to the bottom rail, and a method by which the bottom rail of the dash is strengthened at the weld and at the portion of said rail to which the dash-foot is to be attached. Another object of my invention is to provide a means by which a recess is formed in the bottom rail, preparatory to punching said rail; to receive the bolt or other attachment which secures the dash-foot to the bottom rail, the operation of forming the recess being performed at the same time that the end-bar is welded to the bottom rail.' The entire operation set forth in the specification, of welding the bars to the rail, of strengthing the bottom rail of the dash, and of forming a recess in the bottom rail at the same time that the welding is done, is described in the specification as effected by one and the same simultaneous action of two opposing dies, an upper die and a lower die, placed face to face. The dies are provided with channels or depressions,—one, a, to receive the end bar of the frame, and the other, a1, to receive the bottom rail; the channels, a, a1, of one die coinciding with like channels in the other die, when the two dies are placed together. From the bottom of the depressions, a1, in the two dies rise tongues, a2, which, like the depressions, a, coincide with each other when the two dies are placed together; the tongues preferably not rising quite to the face of the dies, so that, when the dies are placed together, a slight space is left between the two tongues. The specification also states that, preferably, the tongues, a2, are so formed that when the dies are placed together the tongues will approach closer to each other at that portion of themselves which forms that part of the web in the lower bar which is to be punched through to receive the bolt or other device by which the dash-frame is connected to the foot or vehicle, than at any other point; in other words, the face of the tongues is inclined. The object of such a formation of the tongues is stated in the specification to be to make the web left in the bottom rail thinner in that portion of such rail where perforations are to be made to receive the bolts which secure the dash-foot to the frame, the web being in other portions preferably left of a uniform thickness; and one of the objects of thus making the web thin is to enable it to be more readily punched or otherwise perforated. By means of those dies a recess is formed in either side of the bottom rail, which recess corresponds with the tongues, a2, of the dies. The four claims of the patent are as follows: '(1) The combination, substantially as set forth, of the two dies having opposing angularly-joined depressions, a, a,1 and a tongue, a2, in the depression, a1, of either or both dies, (2) The combination, substantially as set forth, of the two dies having opposing angularly-joined depressions, a, a1, and a tongue, a2, in the depression, a2, of either or both dies, the depressions, a1, deepening to wards their junctions with the depressions, a. (3) The combination, substantially as before set forth, of the dies having opposing angularly-joined depressions, a, a1, and a tongue, a2, in either or both of the said depressions; the face of said tongue or tongues being inclined. (4) The combination, substantially as before set forth, of the dies having opposing angularly-joined depressions, a, a1, and a tongue, a2, in either or both of the said depressions; the depressions, a1, deepening towards their junctions with the depressions, a, and the face of the tongue or tongues being inclined.' The whole of this alleged invention is based upon the idea, old and well known, that a metallic die, whether of a cameo or intaglio form, will, when impressed upon a piece of heated or yielding metal, leave the latter of the converse form of the die, and that, when two dies are brought together over a piece of heated or yielding metal, the latter will take the shape of the space existing between the contours of the two dies. It is an inevitable consequence of the use of two dies in such a way, on two pieces of metal of proper size, heated to a welding heat, that swaging or welding will take place by the impact of the dies; that, when the dies have tongues and depressions in them, the metal acted on by such tongues and depressions will take the shape, in form and thickness, of the space left between the tongues or the depressions; and that a greater or less thickness of metal will be the result, as the face of the tongues is more or less inclined. All this was old and common knowledge, and the whole of the operation resulting from such features is nothing but the well-known action of two dies so shaped as to give the desired conformation to the article acted upon by them. If it was desired to preserve a channel in the bottom rail of the dash-frame, when the bottom rail was made of channeled iron, it was obvious, and not a matter of invention, that the die must be provided with a tongue to fit into the channel, to prevent the filling up of the channel by the forcing into iy of metal by the action of the dies in welding the two pieces together. So, too, if it was desirable to make the welded parts thicker, and thus stronger, at the angle formed by the end bar and the bottom rail, it was obvious that the bottoms of the recesses in the dies must be deepened at such angle. That is all there is of the alleged invention of Peters. It appears from the testimony that it was not new, at the time of such alleged invention, to use channeled iron in making dash-frames; or new to weld channeled iron to flat or oval bars of iron; or new to use dies for swaging or welding together two pieces of iron. All that remained to be done in the present case, as in other cases, was to adapt the form of the dies to the shape desired in the article to be acted upon by them. Dies which act upon two pieces of metal which are capable of being welded to each other, and which are brought to a welding heat, necessarily will weld them together by the impact and action of the dies. There is no patentable invention in securing such result of welding or swaging, if there be no patentable invention in the construction and use of the dies to produce a given shape in the article acted upon by them. The decree of the circuit court is affirmed.
129.US.642	Letters of a shipping agent to his principal are incompetent evidence, either in themselves, or in corroboration of the agent's testimony, of the quantity of goods slupped, against third persons.	This was an action on a policy of insurance upon a cargo of sugar shipped at Sagua, in Cuba, for New York. After verdict and judgment for the plaintiffs, the defendant sued out this writ of error. The principal controversy at the trial was whether the cargo shipped consisted of 531 hogsheads, or of 368 hogsheads only. Upon this question there was much conflicting evidence, and the plaintiffs introduced a number of depositions, taken under commission at Sagua, including those of the plaintiffs themselves, as to what took place at their warehouse, and those of their shipping agents, as to what took place at the port, some 20 miles below. Annexed to the deposition of one of the plaintiffs were letters written to them by their shipping agents, at the time of the successive shipments, stating the number of hogsheads shipped. Upon these letters being offered in evidence by the plaintiffs, the defendant objected that they were irrelevant and incompetent, and duly excepted to the ruling of the court admitting them. It is too clear for discussion that these letters, written to the plaintiffs by their own agents, were no part of the transaction of shipping the sugar, but were mere reports by the agents to their principals, and were incompetent, either in themselves, or in corroboration of the testimony of the agents, to prove the facts recited in the letters against third persons. Freeborn v. Smith, 2 Wall. 160, 176; Dwyer v. Dunbar, 5 Wall. 318; U. S. v. Corwin, ante, 318. Upon the exceptions to other rulings we give no opinion, because they may be presented in a different aspect upon another trial. To avoid misapprehension, it may be added that, according to the rule heretofore laid down by this court, objections to copies of documents or memoranda embodied in or annexed to the depositions, might perhaps more properly have been made by motion to suppress them before the trial, so as to afford opportunity to produce the originals, when those would be competent evidence. York Co. v. Railroad Co., 3 Wall. 107; Blackburn v. Crawfords, Id. 175, 191. But the letters to the plaintiffs from their own agents were absolutely incompetent, and their admission in evidence clearly tended to prejudice the defendant with the jury. Upon this ground the judgment of the circuit court must be reversed, and the case remanded, with directions to set aside the verdict, and to order a new trial.
129.US.387	B executed and delivered to C is bond in 1855 or 1856 to convey to him a tract of land for a consideration named. C entered into possession, borrowed money of R, paid the consideration money in full, and made valuable improvements on the place. At C's request the conveyance was made to R, in 1858, to secure him. Four years later R, having in the meanwhile been paid in full by C, conveyed the property to a woman without consideration, and then married her. After some time the married couple separated. The wife then brought ejectment to recover possession from C, (who during the whole time had remained in possession,) and obtained a verdict and judgment on the verdict for possession. Thereupon C took a new trial as of right, under the laws of Illinois, and, in 1883 filed his bill in equity against the wife to compel a conveyance of the land to hun; Held, (1) That C's remedy was in equity; (2) That he had not been guilty of such laches as would close the doors of a court of equity against him, (3) That the evidence in the record was sufficient to support a decree In complainant's favor. Laches cannot be imputed to one in the peaceable possession of land under an equitable title, for delay in resorting to a court of equity for protection against the legal title; since possession is notice of his equitable rights and he need assert them only when he finds occasion to do so. A grantee in a deed is not affected by declarations of a grantor, made after the execution and delivery of the deed, unless, with full knowledge of them, he acquiesces in or sanctions them.	About the year 1855 or 1856, W. D. Bowers executed to the appellee, Cory, his bond in writing for the conveyance of certain lands in Mason county, Ill., the consideration being the sum of $1,000, payable in two equal installments on the 1st day of October, 1857, and 1858, with 10 per cent. interest from the date of sale. Cory went into possession under the purchase on or about May 1, 1856, during which year he prepared and sowed in wheat about 75 acres. In 1857 he erected a house on the premises, and, before the wheat crop of that year was cut, he moved into it with his family. During the next year he prepared for cultivation 40 additional acres. He has cultivated, more or less, these lands ever since he first took possession of them. All the improvements thereon, including the fencing, as well as the taxes, (except those for the year 1880,) were regularly paid by him. On the 1st day of October, 1858, Bowers and wife conveyed the lands to Elisha Ruckman, of New Jersey, who was a first cousin of Cory, and a man of large means. This was the first time Bowers had heard of Ruckman. Until the delivery of the above deed, he knew of no one except Cory in the transaction for the sale of the lands. On the 24th of April, 1862, Ruckman, by deed executed in New Jersey, conveyed the lands to Margaret Hopping, a single woman, to whom, at a subsequent date, January 25, 1864, he was married. Sometime after their marriage, but at what time does not appear, Ruckman and his wife separated; and they were living apart when she brought in the court below an action of ejectment against Cory for the recovery of the lands. In that action—the date of the commencement of which is not shown by the record—she obtained a verdict and judgment; but Cory elected to take, and did take, as of right, a new trial, as provided for in the statutes of Illinois. Rev. St. Ill. c. 45. Thereupon he instituted the presentsuit against Mrs. Ruckman (her husband having died) for the purpose of obtaining a decree requiring her to convey to him by sufficient deed, all her right, title, and interest in these lands. The claim for such relief is rested by the plaintiff upon these grounds: That the lands were purchased by him from Bowers, and paid for (except as to a small part of the price stipulated) with money borrowed for that purpose from Ruckman; that without the knowledge or request of Ruckman, and solely for the purpose of securing him in the payment of the amount so loaned, he caused Bowers to make the conveyance directly to Ruckman; that, although such conveyance was abolute in form, it was intended to be, and was only to operate as, a security for the debt due from him to Ruckman; that the latter, without his knowledge or consent, and without a good or valuable consideration to sustain it, made the deed of 1862 to Margaret Hopping; that only recently, namely, by said action of ejectment, did she assert any title under the deed to her; that his debt to Ruckman, on account of the borrowed money, has long since been discharged in full; and that, nevertheless, the defendant refused to convey to him, and was inequitably prosecuting her action of ejectment for possession. The court below gave the plaintiff the relief asked by him. 1. The contention that the plaintiff has a plain, adequate, and complete remedy at law cannot be sustained. It is not certain that he can successfully defend the action of ejectment. Besides, only a court of equity can compel the surrender of the legal title held by the defendant and invest the plaintiff with it. 2. Nor has the plaintiff been guilty of any such laches as would close the doors of a court of equity against him. He was in the peaceful occupancy of the premises for some part of the defendant under the deed of 1862. part of the defendatn under the deed of 1862. If he had not been all the time in the possession of the premises, controlling them as if he were the absolute owner, the question of laches might be a more serious one for him than it is. The bringing of the action of ejectment was, so far as the record shows, the first notice he had of the necessity of legal proceedings for his protection against the legal title held by the defendant. As proceedings to that end were not unreasonably delayed, we do not perceive that laches can be imputed to him. Laches are rather to be imputed to the defendant, who, although claiming to have been the absolute owner of the lands since 1862, took no action against the plaintiff until the ejectment suit was instituted. Mills v. Lockwood, 42 Ill. 111, 118. 'Laches,' the supreme court of Illinois has well said, 'cannot be imputed to one in the peaceable possession of land for delay in resorting to a court of equity to correct a mistake in the description of the premises in one of the conveyances through which the title must be deduced. The possession is notice to all of the possessor's equitable rights, and he need to assert them only when he may find occasion to do so.' Wilson v. Byers, 77 Ill. 76, 84. See, also, Barbour v. Whitlock, 4 T. B. Mon. 180, 195; May's Heirs v. Fenton, 7 J. J. Marsh, 306, 309. 3. Reference is made to the depositions of several witnesses, including the plaintiff, who testified in his own behalf, in which are detailed statements made by Ruckman, at different times after 1862, in reference to the title to these lands. This evidence, it is contended, and properly so, was incompetent, under the well-established rule that 'a grantee in a deed is not affected with the declarations of the grantor made after the execution and delivery of the deed, unless, with full knowledge of such declarations, he acquiesces in or sanctions them.' Higgins v. White, 118 Ill. 619, 624, 8 N. E. Rep. 808; Steinbach v. Stewart, 11 Wall. 566, 581; Manufacturing Co. v. Creary, 116 U. S. 161, 165, 6 Sup. Ct. Rep. 369. But the question remains whether the decree cannot be sustained by such evidence in the record as is competent and relevant. We think it can. At any rate, after a careful sifting of the proof, and giving due weight to all the facts and circumstances that may properly be considered, we do not see our way clear to disturb the decree. There are no other questions in the case that we deem it necessary to notice. The decree is affirmed.
129.US.36	Two "residents of Shreveport, Louisiana," sued in the Circuit Court of the United States for the Western District of Louisiana on a contract of that muniipality made in 1871, alleging, as the ground of Federal jurisdiction, that the constitution of Louisiana of 1879 had impaired the obligation of their contract. The municipality answered that it had been held by all the state courts that the provision of the constitution referred to did " not apply to contracts entered into prior to the adoption of the constitution of 1879." The Supreme Court of Louisiana prior to the commencement of this suit had in fact so decided Held, that this suit was an attempt to evade the discrimination between suits between citizens of the same State and citizens of different States, established by the Constitution and laws of the United States, and that the Circuit Court was without jurisdiction. A constitution, or a statute, is construed to operate prospectively only, unless, on its face, the contrary intention is manifest beyond reasonable question.	Unless this suit was one 'arising under the constitution or laws of the United States,' the circuit court had no jurisdiction; and if it did not really and substantially involve a dispute or controversy as to the effect or construction of the constitution or some law, upon the determination of which the recovery depended, then it was not a suit so arising. Starin v. New York, 115 U. S. 248, 257, 6 Sup. Ct. Rep. 28; Water Co. v. Keyes, 96 U. S. 199. The case at bar was, in effect, an action at law to recover a balance alleged to be due the petitioners or plaintiffs upon a contract with the defendant, and the maintenance of the cause of action involved no federal question whatever, nor is any such indicated in the judgment rendered. But the jurisdiction seems to have been rested upon the averments in plaintiffs' petition that, under article 209 of the state constitution of 1879, providing that 'no parish or municipal tax for all purposes whatsoever shall exceed ten mills on the dollar of valuation,' the city of Shreveport, being so situated as to need all the revenue from such a tax, cannot raise funds to pay its just debts; that therefore plaintiffs are deprived by that article, 'if same be valid and operative,' of the remedy of enforcing payment by the levy of taxes, although their contract was entered into in 1871; and that so said article impairs the obligation of such contract. This contention, however, required the circuit court to assume that the courts of Louisiana would hold that the city could lawfully avail itself of the constitutional limitation in question as a defense to the collection by taxation of the means to liquidate the indebtedness, notwithstanding that would be to apply it retrospectively to the destruction of an essential remedy existing when the contract was entered into, whereas the presumption in all cases is that the courts of the states will do what the constitution and laws of the United States require. Railroad Co. v. Ferry Co., 108 U. S. 18, 1 Sup. Ct. Rep. 614, 617; Neal v. Delaware, 103 U. S. 370, 389. And we find in accordance with that presumption that the supreme court of Louisiana holds, and had held prior to the commencement of this suit, that article 209 'must have a rigid enforcement with regard to all creditors whose rights are not protected by the constitution of the United States, and with regard to all future operations of the city government of every kind whatever. But it is perfectly clear that the rights of antecedent contract cred tors are protected by the constitution of the United States, and they are entitled to have them enforced 'in all respects as if' this provision of the constitution 'had not been passed.' Von Hoffman v. City, 4 Wall. 535. The fact that the act of the state is a constitutional provision instead of a mere legislative act does not affect the case. Railroad Co. v. McClure, 10 Wall. 515. It is apparent, therefore, that whatever percentage of taxation may be required to meet the maturing obligations in interest or principal of antecedent contract creditors must, in any and all events, be levied.' Moore v. City of New Orleans, 32 La. Ann. 747. Constitutions as well as statutes are construed to operate prospectively only, unless, on the face of the instrument or enactment, the contrary intention is manifest beyond reasonable question. There is nothing on the face of article 209 evidencing an intention that it should be applied to antecedent contracts, and the highest tribunal of the state has declared that it cannot be so applied. It is impossible, under these circumstances, to sustain the jurisdiction of the circuit court upon the ground, not that the city had been, but that it might perhaps be, allowed to interpose to defeat the enforcement, by the appropriate means, of payment of an alleged indebtedness, a constitutional provision inapplicable by the ordinary rules of law, and so determined to be by the dehberate decision of the state supreme court. Nor can it be held that a dispute or controversy as to the effect of the constitution of the United States upon article 209 of the constitution of the state was in volved in determining in this action whether the defendant was indebted to the plaintiffs, and, if so, in what amount. The prayer of the petition was that judgment might be rendered for the amount claimed, and also that article 209 might be declared null and void; and some considerations supposed to bear upon the latter subject were addressed to the jury by the learned judge who presided upon the trial, to which the verdict made no response in terms; but it does not appear that an order for the assessment of taxes to pay the amount a warded, or for any supplementary proceedings of like nature, to the entry of which said article might in any view be claimed to be an obstruction, was authorized by statute to be made part of the judgment in such a case as this, and the judgment was simply for the recovery of so much money, to be thereafter collected as provided by law. When, in the instance of a judgment rendered on contract in a state court, remedies for its collection existing at the time of the making of the contract are taken away, in substance, by state constitution or statute, and the deprivation enforced by the final judgment of the state courts, a writ of error under section 709 of the Revised Statutes enables this court to vindicate the supremacy of the constitution and laws of the United States, and administer the proper remedy; but had this record in its present shape come before us in that way even we should have had no alternative save to dismiss the writ. In cases originally brought in the circuit court, or by removal from a state court, it is made the duty of the circuit court to dismiss or remand the same whenever it appears that the suit does not really and substantially involve a dispute or controversy properly within its jurisdiction, or that the parties to the suit have been improperly or collusively made or joined either as plaintiffs or defendants for the purpose of creating a case cognizable or removable. As remarked in Bernards Tp. v. Stebbins, 109 U. S. 353, 3 Sup. Ct. Rep. 252, it has been the constant effort of congress and of this court to prevent the discrimination in respect to suits between citizens of the same state and suits between citizens of different states, established by the constitution and laws of the United States, 'from being evaded by bringing into federal courts controversies between citizens of the same state.' We regard this suit as an evasion of that character. The judgment of the circuit court is reversed, and the cause remanded, with directions to dismiss the petition.
129.US.114	The statute of West Virginia (§§ 9 and 15, chapter 93, 1882) which requires every practitioner of medicine in the State to obtain a certificate from the State Board of Health that he is a graduate of a reputable medical college in the school of medicine to which he belongs; or that lie has practised medicine in the State continuously for ten years prior to March 8, 1881, or that he has been found upon examination to be qualified to practise medicine m all its departments, and wnch subjects a pekson practising without such certificate to prosecution and punishment for a misdemeanor, does not, when enforced against a person who had been a practising physician in the State for a period of five years before 1881, without a diploma of a reputable medical college in the school of medicine to which he belonged, deprive him of his estate or interest in the profession without due process of law. The State, in the exercise of its power to provide for the general welfare of its people, may exact from parties before they can practise medicine a degree of skill and learning in that profession upon which the community employing their services may confidently rely, and, to ascertain whether they have such qualifications, require them to obtain a certificate or license from a Board or other authority competent to judge in that respect. If the qualifications required are appropriate to the profession, and attainable by reasonable study or application, their validity is not subject to objection because of their stringency or difficulty. Legislation is not open to the charge of depriving one of his rights without due process of law, if it be general in its operation upon the subjects to which it relates, and is enforceable in the usual modes established in the administration of government with respect to kindred matters; that is, by process or proceedings adapted to the nature of the case, and such is the legislation of West Virginia in question. Cummzngs v Missour?, 4 Wall. 277 and Ex parte Garland, 4 Wall. 388, examined and shown to differ materially from this case. THE court stated the case as follows	Whether the indictment upon which the plaintiff in error was tried and found guilty is open to objection for want of sufficient certainty in its averments is a question which does not appear to have been raised either on the trial or before the supreme court of the state. The presiding justice of the latter court, in its opinion, states that the counsel for the defendant expressly waived all objections to defects in form or substance of the indictment, and based his claim for a review of the judgment on the ground that the statute of West Virginia is unconstitutional and void. The unconstitutionality asserted consists in its alleged conflict with the clause of the fourteenth amendment which declares that no state shall deprive any person of life, liberty, or property without due process of law; the denial to the defendant of the right to practice his profession without the certificate required constituting the deprivation of his vested right and estate in his profession, which he had previously acquired. It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex, and condition. This right may in many respects be considered as a distinguishing feature of our republican institutions. Here all vocations are open to every one on like conditions. All may be pursued as sources of livelihood, some requiring years of study and great learning for their successful prosecution. The interest, or, as it is sometimes termed, the 'estate,' acquired in them—that is, the right to continue their prosecution—is often of great value to the possessors, and cannot be arbitrarily taken from them, any more than their real or personal property can be thus taken. But there is no arbitrary deprivation of such right where its exercise is not permitted because of a failure to comply with conditions imposed by the state for the protection of society. The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as in its judgment will secure or tend to secure them against the consequences of ignorance and incapacity, as well as of deception and fraud. As one means to this end it has been the practice of different states, from time immemorial, to exact in many pursuits a certain degree of skill and learning upon which the community may confidently rely; their possession being generally ascertained upon an examination of parties by competent persons, or inferred from a certificate to them in the form of a diploma or license from an institution established for instruction on the subjects, scientific and otherwise, with which such pursuits have to deal. The nature and extent of the qualifications required must depend primarily upon the judgment of the state as to their necessity. If they are appropriate to the calling or profession, and attainable by reasonable study or application, no objection to their validity can be raised because of their stringency or difficulty. It is only when they have no relation to such calling or profession, or are unattainable by such reasonable study and application, that they can operate to deprive one of his right to pursue a lawful vocation. Few professions require more careful preparation by one who seeks to enter it than that of madicine. It has to deal with all those subtle and mysterious influences upon which health and life depend, and requires not only a knowledge of the properties of vegetable and mineral substances, but of the human body in all its complicated parts, and their relation to each other, as well as their influence upon the mind. The physician must be able to detect readily the presence of disease, and prescribe appropriate remedies for its removal. Every one may have occasion to consult him, but comparatively few can judge of the qualifications of learning and skill which he possesses. Reliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he possesses the requisite qualifications. Due consideration, therefore, for the protection of society may well induce the state to exclude from practice those who have not such a license, or who are found upon examination not to be fully qualified. The same reasons which control in imposing conditions, upon compliance with which the physician is allowed to practice in the first instance, may call for further conditions as new modes of treating disease are discovered, or a more thorough acquaintance is obtained of the remedial properties of vegetable and mineral substances, or a more accurate knowledge is acquired of the human system and of the agencies by which it is affected. It would not be deemed a matter for serious discussion that a knowledge of the new acquisitions of the profession, as it from time to time advances in its attainments for the relief of the sick and suffering, should be required for continuance in its practice, but for the earnestness with which the plaintiff in error insists that by being compelled to obtain the certificate required, and prevented from continuing in his practice without it, he is deprived of his right and estate in his profession without due process of law. We perceive nothing in the statute which indicates an intention of the legislature to deprive one of any of his rights. No one has a right to practice medicine without having the necessary qualifications of learning and skill; and the statute only requires that whoever assumes, by offering to the community his services as a physician, that he possesses such learning and skill, shall present evidence of it by a certificate or license from a body designated by the state as competent to judge of his qualifications. As we have said on more than one occasion, it may be difficult, if not impossible, to give to the terms 'due process of law' a definition which will embrace every permissible exertion of power affecting private rights, and exclude such as are forbidden. They come to us from the law of England, from which country our jurisprudence is to a great extent derived; and their requirement was there designed to secure the subject against the arbitrary action of the crown, and place him under the protection of the law. They were deemed to be equivalent to 'the law of the land.' In this country the requirement is intended to have a similar effect against legislative power; that is, to secure the citizen against any arbitrary deprivation of his rights, whether relating to his life, his liberty, or his property. Legislation must necessarily vary with the different objects upon which it is designed to operate. It is sufficient, for the purposes of this case, to say that legislation is not open to the charge of depriving one of his rights without due process of law, if it be general in its operation upon the subjects to which it relates, and is enforceable in the usual modes established in the administration of government with respect to kindred matters; that is, by process or proceedings adapted to the nature of the case. The great purpose of the requirement is to exclude everything that is arbitrary and capricious in legislation affecting the rights of the citizen. As said by this court in Yick Wo v. Hopkins, speaking by Mr. Justice MATTHEWS: 'When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power.' 118 U. S. 356, 369, 6 Sup. Ct. Rep. 1064. See, also, Pennoyer v. Neff, 95 U. S. 714, 733; Davidson v. New Orleans, 96 U. S. 97, 104, 107; Hurtado v. California, 110 U. S. 516, 4 Sup. Ct. Rep. 111; Railroad Co. v. Humes, 115 U. S. 512, 519, 6 Sup. Ct. Rep. 110. There is nothing of an arbitrary character in the provisions of the statute in question. It applies to all physicians, except those who may be called for a special case from another state. It imposes no conditions which cannot be readily met; and it is made enforceable in the mode usual in kindred matters,—that is, by regular proceedings adapted to the case. It authorizes an examination of the applicant by the board of health as to his qualifications when he has no evidence of them in the diploma of a reputable medical college in the school of medicine to which he belongs, or has not practiced in the state a designated period before March, 1881. If, in the proceedings under the statute, there should be any unfair or unjust action on the part of the board in refusing him a certificate, we doubt not that a remedy would be found in the courts of the state. But no such imputation can be made, for the plaintiff in error did not submit himself to the examination of the board after it had decided that the diploma he presented was insufficient. The cases of Cummings v. State of Missouri, 4 Wall. 277, and of Ex parte Garland, Id. 333, upon which much reliance is placed, do not, in our judgment, support the contention of the plaintiff in error. In the first of these cases it appeared that the constitution of Missouri, adopted in 1865, prescribed an oath to be taken by persons holding certain offices and trusts, and following certain pursuits within its limits. They were required to deny that they had done certain things, or had manifested by act or word certain desires or sympathies. The oath which they were to take embraced 30 distinct affirmations respecting their past conduct, extending even to their words, desires, and sympathies. Every person unable to take this oath was declared 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,' then existing or thereafter 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 holding, at the time the constitution took effect, 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 allowed, without taking the oath, 'to practice as an attorney or counselor 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 taking 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. As many of the acts from which the parties were obliged to purge themselves by the oath had no relation to their fitness for the pursuits and professions designated, the court held that the oath was not required as a means of ascertaining whether the parties were qualified for those pursuits and professions, but was exacted because it was thought that the acts deserved punishment, and that for many of them there was no way of inflicting punishment except by depriving the parties of their offices and trusts. A large portion of the people of Missouri were unable to take the oath, and as to them the court held that the requirement of its constitution amounted to a legislative deprivation of their rights. Many of the acts which parties were bound to deny that they had ever done were innocent at the time they were committed, and the deprivation of a right to continue in their offices if the oath were not taken was held to be a penalty for a past act, which was violative of the constitution. The doctrine of this case was affirmed in Pierce v. Carskadon, 16 Wall. 234. In the second case mentioned—that of Ex parte Garland—it appeared that on the 2d of July, 1862, congress had passed an act prescribing an oath to be taken by every person elected or appointed to any office of honor or profit under the United States, either in the civil, military, or naval departments of the government, except the president, before entering upon the duties of his office, and before being entitled to his salary or other emoluments. On the 24th of January, 1865, congress, by a supplemental act, extended its provisions so as to embrace attorneys and counselors of the courts of the United States. This latter act, among other things, provided that after its passage no person should be admitted as an attorney and counselor to the bar of the supreme court, and, after the 4th of March, 1865, to the bar of any circuit or district court of the United States, or of the court of claims, or be allowed to appear and be heard by virtue of any previous admission, until he had taken and subscribed the oath prescribed by the act of July 2, 1862. The oath related to past acts, and its object was to exclude from practice in the courts parties who were unable to affirm that they had not done the acts specified; and, as it could not be taken by large classes of persons, it was held to operate against them as a legislative decree of perpetual exclusion. Mr. Garland had been admitted to the bar of the supreme court of the United States, previous to the passage of the act. He was a citizen of Arkansas, and when that state passed an ordinance of secession which purported to withdraw her from the Union, and by another ordinance attached herself to the so-called 'Confederate States,' he followed the state, and was one of her representatives, first in the lower house, and afterwards in the senate of the congress of the Confederacy, and was a member of that senate at the time of the surrender of the Confederate forces to the armies of the United States, Subsequently, in 1865, he received from the president of the United States a full pardon for all offenses committed by his participation, direct or implied, in the rebellion. He produced this pardon, and asked permission to continue as an attorney and counselor of this court without taking the oath required by the act of January 24, 1865, and the rule of the court which had adopted the clause requiring its administration in conformity with the act of congress. The court held that the law, in exacting the oath as to his past conduct as a condition of his continuing in the practice of his profession, imposed a penalty for a past act, and in that respect was subject to the same objection as that made to the clauses of the constitution of Missouri, and was therefore invalid. There is nothing in these decisions which supports the positions for which the plaintiff in error contends. They only determine that one who is in the enjoyment of a right to preach and teach the Christian religion as a priest of a regular church, and one who has been admitted to practice the profession of the law, cannot be deprived of the right to continue in the exercise of their respective professions by the exaction from them of an oath as to their past conduct, respecting matters which have no connection with such professions. Between this doctrine and that for which the plaintiff in error contends there is no analogy or resemblance. The constitution of Missouri and the act of congress in question in those cases were designed to deprive parties of their right to continue in their professions for past acts, or past expressions of desires and sympathies, many of which had no bearing upon their fitness to continue in their professions. The law of West Virginia was intended to secure such skill and learning in the profession of medicine that the community might trust with confidence those receiving a license under authority of the state. Judgment affirmed.
130.US.649	When, in an action brought by an cmploy6 of a railroad company to recover damages for injuries caused by the negligence of other employ~s, the defence of contributory negligence is set up, the plaintiff is entitled to have the question submitted to the jury unless no recovery could be had upon any view which could be properly taken of the fTcts which the evidence tended to establish. This court will not, by a technical construction of an obscure record, preclude itself from correcting an error committed in the trial below, if a construction can be given to it which will give jurisdiction.	The circuit court erred in not submitting the question of contributory negligence to the jury, as the conclusion did not follow, as matter of law, that no recovery could be had upon any view which could be properly taken of the facts the evidence tended to establish. Kane v. Railway Co., 128 U. S. 91, ante, 16; Jones v. Railroad Co., 128 U. S. 443, ante, 118. It is urged that the exceptions were not properly saved, and therefore that they should be disregarded. There is some obscurity in the record upon this subject, but upon the whole we think that enough appears to enable us to pass upon the question presented. The bill of exceptions shows that certain instructions, numbered 1 and 2, were requested by plaintiff and refused, and certain instructions, numbered 3 and 4, objectionable or adverse to plaintiff, were given, and it is stated by the court that 'the plaintiff's counsel presented his requests in writing before the charge of the court began. The court instructed the jury to find for the defendant, without notice to plaintiff's counsel that the requests would not be given, and there was no opportunity for counsel to except to the failure of the court to charge as requested until the instructions were given to the jury. The exceptions, therefore, contained in Nos. 1, 2, 3, and 4 were not taken or noted during the trial.' But the bill of exceptions also states: '(5) The court instructed the jury to return a verdict for the defendant. (6) The jury returned a verdict in accordance with said instructions, and judgment was thereupon entered up in behalf of defendant in pursuance of said instructions; and to said instructions, verdict, and judgment the plaintiff, by his counsel, excepted, and now excepts, during the term at which said case was tried, and while said term is still in session, and assigns the same as error, and prays the court to sign and certify this exception.' We understand from this language, taken together, that the general instruction of the court to find for the defendant was excepted to at the proper time; and, while greater accuracy of expression should have been used, we are not inclined by too technical a construction to preclude ourselves from correcting the error we hold was committed. The judgment is reversed, and the cause remanded, with directions to grant a new trial.
129.US.663	An agent is bound to act with absolute good faith towards is principal, in respect to every matter entrusted to bis care and management. In accepting a gift from his principal he is under an obligation to withhold no information m his possession respecting the subject of the gift, or the condition of the estate in his hands, which good faith requires to be disclosed, or that may reasonably influence the judgment of the principal in making the gift. All transactions between them whereby the agent derives advantages beyond legitimate compensation for Ins services will be closely examined by Courts of Equity, and set aside if there be any ground to suppose that lie has abused the confidence reposed in him. When the proof is conflicting upon the point of undue influence exerted upon one making provision by deed in favor of the person alleged to have exerted the influence, and it appears that the contestant, having full knowledge of all the circumstances, made no averment in his original bill of the incapacity of the grantor, and did not raise that issue until an amended bill was filed a year later, that fact is entitled to weight in determining the case. When incapacity caused by drunkenness is alleged as a cause for annulling a deed, the vital inquiry is as to the capacity of the grantor when the deeds were executed, and not as to his capacity when drunk. Section 2666 of the Code of Georgia, relating to gifts made to a guardian by a minor just after arriving at majority does not apply to the case of a deed or will in favor of his guardian made by a person some years after arriving at his majority but even if it did apply such a deed would be good if made with a full knowledge of the facts, and without any misrepresentation or suppression of material facts by the guardian. As the record in this case discloses nothing impeaching the final settlement made betweeil the guardian and his ward, § 1847 of the Code of Georgia does not apply to it. Section 3177 of the Code of Georgia, relating to gifts from one party to another where, there are confidential relations arising from nature, or created by law or resulting from contracts where one party is so situated as to exercise a controlling influence over the other, is only a statement of a general rule, governing all courts of equity.	We must examine each of the principal grounds upon which the plaintiff bases her claim for relief; for if, as contended, Ralston was in such condition, mentally and physically, when the deeds of 1880 and 1881 were executed, that he could not or did not comprehend the nature of the transactions, or if their execution was obtained by means of undue influence exercised over him by Turpin, in either case the plaintiff would be entitled to relief. It would be granted upon the principle laid down in Harding v. Handy, 11 Wheat. 103, 125, which was a suit by heirs at law to set aside conveyances obtained from their ancestor. Chief Justice MARSHALL there said: 'If these deeds were obtained by the exercise of undue influence over a man whose mind had ceased to be the safe guide of his actions, it is against conscience for him who has obtained them to derive any advantage from them. It is the peculiar province of a court of conscience to set them aside.' Allore v. Jewell, 94 U. S. 506, 511. On the contrary, if it does not appear that he was incapable, by reason of physical or mental debility, of exercising a discriminating judgment in respect to the disposition of his property, or was driven to make the gifts in question against his own wishes, and under some influence that he was unable, no matter from what cause, to resist, the relief asked must be denied. 'The undue influence for which a will or deed will be annulled,' this court said in Conley v. Nailor, 118 U. S. 127, 134, 6 Sup. Ct. Rep. 1005, 'must be such as that the party making it has no free will, but stands in vinculis.' In a case of conflicting proof, as here, it is a circumstance not without weight that the plaintiff, who, more than any one else, was cognizant of the grantor's condition during the entire period in question, makes no averment in the original bill of the husband's want of capacity to dispose of his property. The averment was that when the deeds were made he was in a declining state of health, and his constitution greatly weakened by dissipation. Such a condition does not, however, necessarily imply an absence of sufficient capacity to dispose of property by gift or otherwise. Nearly a year passed after the institution of this suit before she distinctly made the issue that the deeds were void for the want of capacity upon the part of her husband to make them. The proof does show beyond question—indeed, it is admitted that for many years prior to the execution of the deeds, and thenceforward until his death, in 1883, he was intemperate in his use of ardent spirits. He was often intoxicated, and when in that condition was incapacitated to transact business. But for many years prior to his death there were intervals, some of them quite long, during which he avoided excessive indulgence in strong drink. His capacity, when sober, to transact business is abundantly shown. The vital inquiry is as to his capacity, not when he was intoxicated, but when the deeds were executed. Conley v. Nailor, 118 U. S. 127, 131, 6 Sup. Ct. Rep. 1001. The evidence leaves no room to doubt that at those particular dates he fully comprehended the character of the deeds. If it satisfactorily appeared that, from habitual dissipation or other cause, he was in such enfeebled condition of mind or body, immediately before or immediately after the dates of the respective deeds, as to render him incompetent to transact business, the presumption might arise that he was unable, at the time of their execution, to understand what he was doing, and thus the burden of proof as to his capacity, at those particular dates, to dispose of his property, be imposed upon the grantee. Even in that view, the plaintiff would not be entitled to a decree canceling the deeds, on the ground of the grantor's mental incapacity; for it appears that on each occasion when the respective deeds were executed he was perfectly sober, and possessed sufficient capacity to dispose of his property with an intelligent understanding of what he was doing. He knew at the time that each deed conveyed certain property to Turpin in trust for the children named, and that they were substantially in execution of his settled purpose to make provision out of his estate for the children of the man who had been for years the fast friend and confidential adviser of his parents and of himself. That purpose was based upon motives entirely creditable to him, and, so far as the record discloses, was originally formed without any suggestion by Turpin or his children. Prior to his leaving Macon, in 1879, and before making the will of that year, he often said to companions or acquaintances that he intended to make, or had made, such provision out of his estate. If he executed the deeds of 1880 without knowing what he was doing, he would naturally, at some subsequent time, have expressed dissatisfaction with what he had done, and taken steps to have them set aside. But no expression of dissatisfaction was ever made by him. On the contrary, upon receiving the deed of 1881, accompanied by the request that he would execute it, he promptly complied with that request, and returned the deed duly acknowledged by himself and wife to Turpin. His correspondence with the latter during 1880 and 1881 furnishes persuasive, if not conclusive, evidence that he had accurate knowledge of the condition of his property and its management by Turpin & Ogden, under the direction of Turpin, and was in the enjoyment of good health. On July 28, 1880, within less than a month before making the first deed of gift, he wrote to Turpin from Stamford, Conn., stating, among other things, that he was 'enjoying good health.' On April 18, 1881, the day preceding the last deed of gift, he wrote from the same place to Turpin: 'My health is splendid, but Ida has been ill all winter, and is so still.' The body of each of these letters is in the handwriting of the complainant. They are inconsistent with her present contention that, not only at the time, but both before and after, the deeds of gift were executed, her husband's mind and body had been so wrecked by dissipation that he did not intelligently comprehend what he did, or possess sufficient will to resist the importunities or persuasion of others. To these considerations we may add the significant fact that in no one of the letters that passed between Turpin and the plaintiff, after the latter left Macon, is there any intimation that she disapproved ofthe provision made for Turpin's children. We concur entirely with the conclusion reached upon this issue by the court below. It remains to consider whether the deeds of gift were the result of undue influence exercised by Turpin over Ralston. In discussing this question counsel for the plaintiff call attention to section 2666 of the Code of Georgia, which provides that 'a gift by any person just arrived at majority, or other wise peculiarly subject to be affected by such influences, to his parent, guardian, trustee, attorney, or other person standing in a similar relationship of confidence, shall be scrutinized with great jealously, and, upon the slightest evidence of persuasion or influence towards this object, shall be declared void, at the instance of the donor or his legal representative, at any time within five years after the making of such gift.' We do not perceive that this provision has any direct bearing upon this case. There was here no gift by the ward just after he arrived at his majority. If the deeds in question had been made immediately upon Ralston's arriving at full age, or shortly after he came into possession of his estate, they would, in view of the then recent relation of guardian and ward, have been more difficult to sustain. Still they would have been sustained if it had appeared that they were freely and voluntarily made, upon full knowledge of the facts, without misrepresentation or suppression of material facts by the guardian. In Hylton v. Hylton, 2 Ves. Sr. 547, Lord Chancellor HARDWICKE said: 'Undoubtedly, if after the ward or cestui que trust comes of age, and after actually put into possession of the estate, he thinks fit, when sui juris, and at liberty, to grant that or any other reasonable grant by way of reward for care and trouble, when done with eyes open, the court could never set that aside; but the court guards against doing it at the very time of accounting and delivering up the estate, as the terms; for the court will not suffer them to make that the terms of doing their duty.' In the case before us more than 11 years elapsed after Ralston attained full age, and after Turpin finally settled his accounts as guardian, before the first of the deeds of gift was made. In respect to that settlement, it may be observed that by section 1847 of the Georgia Code it is declared that 'no final settlement made between guardian and ward can bar the ward, at any time within four years thereafter, from calling the guardian to a settlement of his account, unless it is made to appear that the same was made after a full exhibit of all the guardian's accounts, and with a full knowledge by the ward of his legal rights.' Nothing is disclosed by the record that impeaches the entire accuracy of the guardian's final settlement; nothing that suggests any want of intelligence or integrity in his administration of the ward's estate; nothing to show that he ever realized anything from the position of guardian, except such compensation as the law permitted him to receive. When, therefore, the relation of guardian and ward was severed, Ralston had every reason to confide in Turpin's integrity, and to feel grateful, not only for his uniform kindness, but for faithful devotion to his interests. But it is contended that the relations subsequently existing between them were such as are described in section 3177 of the Georgia Code, which declares that 'any relations shall be deemed confidential arising from nature or created by law, or resulting from contracts, where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another, or where, from similar relations of mutual confidence, the law requires the utmost good faith, such as partners, principal and agent,' etc. Undoubtedly, the relation of principal and agent existed between Ralston and Turpin after the relation of guardian and ward had been severed, and up to the death of Ralston. The section of the Georgia Code quoted is an expression of a general rule that has always governed courts of equity. The agent is bound to act with absolute good faith towards the principal in respect to every matter intrusted to his care and management. In accepting a gift from his principal, he is under an obligation to withhold no information in his possession respecting the subject of the gift, or the condition of the estate in his hands, which good faith requires to be disclosed, or that may reasonably influence the judgment of the principal in making the gift. All transactions between them whereby the agent derives advantages beyond legitimate compensation for his services will be closely examined by courts of equity, and set aside if there be any ground to suppose that he has abused the confidence reposed in him. It is for the common security of mankind, Mr. Justice Story well says, 'that gifts procured by agents, and purchases made by them from their principals, should be scrutinized with a close and vigilant suspicion.' 1 Story, Eq. Jur. § 315. An instructive case upon this point is Harris v. Tremenheere, 15 Ves. 34, 38, which was a suit to cancel leases to a party who at the time held the relation of steward, agent, and attorney to the lessor. Some of the leases were pure gifts by the employer. Lord Chancellor ELDON disclaimed any jurisdiction to annul such gifts, when based upon the generosity of the donor, or to weigh the value or amount of the consideration, as if it had been the subject of barter, but said that if he could find 'in the answer or the evidence the slightest hint that the defendant had laid before his employer an account of the value of the premises that was not perfectly accurate, he would set aside such leases.' He would do this, he said, without regard to the intention of the parties, 'upon the general ground that the principal would never be safe if the agent could take a gift from him upon a representation that was not most accurate and precise.' We do not intend to qualify or weaken in any degree these salutary doctrines. Their recognition, however, does not determine the present case, unless it be held that a principal cannot, under any circumstances whatever, make a valid gift to his agent of property committed to the latter's care or management. No such doctrine has ever been established, nor could it be, without impairing the natural right of an owner to make such disposition of his property as he may think would best subserve his interest and comfort or gratify his feelings. That Turpin held such relations, personal and otherwise, to young Ralston as would enable him to exercise great influence over the latter in respect to the mode in which his property should be managed for purposes of revenue; that Ralston trusted Turpin's judgment as to matters of business more than the judgment of any other man; and that he had an abiding confidence in Turpin's integrity, as well as in his desire to protect his interests, are conceded. But we are satisfied that Turpin did not improperly use the infiuence he had over, or abuse the confidence reposed in him by, young Ralston. It was the latter's own thought, induced, no doubt, by his friendly feeling for Turpin and gratitude for the latter's fidelity to his interests, to make some provision for Turpin's family. This thought was first formally expressed in the will of 1874, when he was capable of making a disposition of his property. It was substantially repeated in the will of 1879, drawn in precise conformity with his directions. The circumstances detailed by the plaintiff's counsel to show that the deeds of 1880 and 1881 were procured by undue influence upon the part of Turpin lose most of their force in view of the fact that they covered the same property and named the same beneficiaries that are described in the will of 1879. That Turpin caused the first deed to be prepared, and requested Ralston to execute it, are facts of but little weight. Turpin had been informed of the will of 1879, and it was his right, if not his duty to his children, to inform Ralston that his marriage had revoked that will, and to suggest that, if he was so minded, the execution of a deed was an appropriate mode to give effect to his intention in respect to those children. Nor was the presence in Stamford, when the deeds of 1880 were executed, of Ogden, the partner of Turpin, a suspicious circumstance. The correspondence between Ralston and Turpin, prior to that time, shows that the former was aware of Ogden's purpose to visit the North during the summer of 1880, and desired Ogden to visit him at Stamford. Upon a careful examination of the record, we concur with the court below in holding that the plaintiff has failed to show that the deeds of 1880 and 1881 were obtained by undue influence. On the contrary, it appears by the great preponderance of evidence (to state the case made by the defendants in no stronger language) that, although their execution may have been induced, not unnaturally, by feelings of friendship for and gratitude to the defendant Turpin, the grantor acted upon his own independent, deliberate judgment, with full knowledge of the nature and effect of the deeds. It was for the donor, who had sufficient capacity to take a survey of his estate, and to dispose of it according to an intelligent, fixed purpose of his bounty. In respect to the allegation that determine how far such feelings should control him when selecting the objects of his bounty. In respect to the allegatioin that Turpin suppressed facts touching the condition of Ralston's estate, as affected by the claim of Mrs. Smith, it is sufficient to say that it is not sustained by the proof. Other facts than those we have mentioned are disclosed by the record, and other questions were discussed at the bar, but as they do not, in our judgment, materially affect the decision of the case, we need not specially refer to them. Decree affirmed.
129.US.223	From the facts of this case, it was held, that the intent of a national bank, after it was insolvent, to prefer a creditor, by a transfer of assets, in violation of § 5242 of the Revised Statutes, was a necessary conclusion, that, if any other verdict than one for the plaintiff, m a suit at law by the receiver of the bank to recover the value of the assets from the creditor, had been rendered by the 3ury, it would have been the duty of the court to set it aside; and that it was proper to direct a verdict for the plaintiff. The meaning of § 5242 is not different from the meaning of § 52 of the act of June 3, 1864, c. 106, 13 Stat. 115. It is sufficient, under § 5242, to invalidate such a transfer, that it is made in contemplation of insolvency, and either with a view on the part of the bank to prevent the application of its assets in the manner prescribed by chapter 4 of title 62 of the Revised Statutes, or with a view on its part to the preference of one creditor to another; and it is not necessary to such invalidity that there should be such view on the part of the creditor in receiving the transfer, or any knowledge or suspicion on his part at the time, that the debtor is insolvent or contemplates insolvency.	This is an action at law, brought in the district court of the United States for the district of Massachusetts in November, 1882, by the receiver of the Pacific National Bank, a corporation duly organized under the banking laws of the United States, against the National Security Bank, another corporation so organized. The declaration contains three counts. The first count alleges that the Pacific National Bank became insolvent and failed; that the comptroller of the currency, on the 22d of May, 1882, appointed the plaintiff, Linus M. Price, receiver of the same; that the bank stopped business and closed its doors on the 20th of May, 1882, being insolvent and unable to pay its debts; that steps were on that day taken to represent it to said comptroller as insolvent, and to have a receiver appointed to close it up; that it was determined, on the 20th of May, 1882, not to open its doors or carry on business longer; that on that day the Security Bank was owing to the Pacific Bank, in account, as balance on book, $40.25, and the former bank also held against the latter a certificate of deposit for $10,000; that on the 22d of May, 1882, the Pacific Bank, through its cashier, although it was then insolvent and contemplated insolvency, and had then actually failed and stopped business, and taken said steps for the appointment of a receiver, transferred and delivered to the Security Bank certain checks, drafts, bills, and other property, amounting on their face to the sum of $10,967.95, which, with the said $40.25, made the sum of $11,008.20; that the Security Bank thereupon gave to the cashier of the Pacific Bank a certificate of deposit as follows: 'No. 6216. NATIONAL SECURITY BANK, BOSTON, May 22, 1882. $11,008.20. E. C. Whitney, cash., has deposited in this bank eleven thousand and eight 20-100 dollars, payable to the order of himself on the return of this certificate properly indorsed. CHAS. R. BATT, Cashier.' That the Security Bank collected the money upon the said checks, etc.; that the said certificate of deposit came to the hands of the plaintiff as receiver, among the other assets of the Pacific Bank; that on a demand made by him the Security Bank refused to deliver or pay the said property, or its avails, claiming a right to set it off or apply it on the said certificate of deposit for $10,000; that on the 20th of May, 1882, the Pacific Bank was insolvent; that it, and its directors and officers, well knew the same, and contemplated insolvency; that it was in the same condition on the 22d of May, 1882; that the said transfer of property to the Security Bank was in fraud of the creditors of the Pacific Bank, with a view of giving the former bank a preference over other creditors, by having the same operate as a payment of the debt due to the Security Bank by the Pacific Bank, by way of set-off or otherwise; that the said transfer was illegal, and, if allowed to operate as a set-off or payment, would work an unlawful preference; and that the Pacific Bank, and its officers and cashier well knew, when the transfer was made, that the property, or its proceeds, when collected, would or might be availed of for the payment of the debt due the Security Bank, by way of set-off or otherwise, and contemplated the same, or was bound and is presumed by law to have contemplated and intended the same. The second count of the declaration alleges the giving of the certificate of deposit for $11,008.20; that the plaintiff, as receiver, presented to the Security Bank said certificate, duly indorsed, and demanded payment thereof; but that the defendant refused to pay it. The third count alleges that the defendant owes to the plaintiff as receiver, $11,008.20, as and for money had and received by the defendant to the use of the plaintiff. The declaration demands the recovery of $11,008.20, with interest. The defendant filed an answer and a declaration in set-off. The substance of these papers is that the defendant has a claim in set-off against the Pacific Bank for the amount of the certificate of deposit of the latter bank for $10,000, which was as follows: 'THE PACIFIC NATIONAL BANK OF BOSTON, MASS., BOSTON, May 13, 1882. $10,000. This certifies that there has been deposited in this bank ten thousand dollars, payable to the order of Nat. Security Bank, on return of this certificate properly indorsed. No. 2513. E. C. WHITNEY, Cashier. [Countersigned] G. H. BENYON, Teller.' The plaintiff put in an answer to the defendant's declaration in set-off, making substantially the same averments which are contained in the first count of the plaintiff's declaration. On these issues there was a trial by a jury, which resulted in a verdict for the plaintiff for $12,232.88, and a judgment for him for that amount, with costs. The case was taken to the circuit court by the defendant by a writ of error, and it affirmed the judgment of the district court, with costs. The opinion of the circuit court is reported in 22 Fed. Rep. 697. The plaintiff brought the case to this court by a writ of error, and afterwards Peter Butler, as successor of Price, as receiver, became plaintiff in error. There was a bill of exceptions taken by the defendant in the district court. It states that the three counts of the plaintiff's declaration were all for the same cause of action, and that the right of action contained in the first count was founded upon section 5242 of the Revised Statutes. That section provides as follows: 'All transfers of the notes, bonds, bills of exchange, or other evidences of debt owing to any national banking association, or of deposits to its credit; all assignments of mortgages, sureties on real estate, or of judgments or decrees in its favor; all deposits of money, bullion, or other valuable thing for its use, or for the use of any of its shareholders or creditors; and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof,—made with a view to prevent the application of its assets in the manner prescribed by this chapter, or with a view to the preference of one creditor to another, except in payment of its circulating notes,—shall be utterly null and void.' That section is incorporated in the Revised Statutes from section 52 of the act of June 3, 1864, c. 106, (13 St. 115) The two sections differ in these respects: The word 'transfer' becomes 'transfers;' the words 'and other' become 'or other;' the words 'any association' become 'any national banking association;' the words 'with a view to prevent' become 'made with a view to prevent;' and the words 'this act' become 'this chapter.' No change was made in the meaning of the statute by inserting in section 5242 the word 'made,' not found in section 52 of the act of 1864. The bill of exceptions states that it was admitted at the trial that the $40.25 was on deposit in the Security Bank before the commission of any act of insolvency by the Pacific Bank, and that as to so much of the plaintiff's claim the set-off was a good answer. As to the rest of the claim, the following facts were proved or admitted: 'On Saturday, May 20, 1882, the Pacific Bank, which had previously failed in November, 1881, and had afterwards reorganized and done business, being deeply insolvent, its directors held a meeting in the afternoon, after the regular close of business for the day, and passed these votes, which votes and the proposed action the directors purposely kept concealed until they were carried out: 'Voted to go into liquidation; voted that the bank be closed to business; voted that Lewis Coleman, president, Micah Dyer, Jr., Andrew F. Reed, directors, and William J. Best, be and hereby are appointed a committee to proceed to Washington to confer with the Hon. John J. Knox, comptroller of the currency, as to the measures proper to be taken in the present situation; that, if the comptroller shall deem it necessary to appoint a receiver, the directors unanimously recommend for that position Mr. E. C. Whitney, who since March 18th has discharged the duties of cashier with great ability, diligence, and energy, and who is perfectly familiar with the assets, liabilities, and affairs of the bank, and thoroughly understands the steps necessary to be taken to speedily and profitably realize upon the estate to the fullest extent; that, if Mr. E. C. Whitney shall be appointed receiver of the bank, the directors will furnish satisfactory bonds for the faithful discharge of his duties to any amount which the comptroller may require.' And the bank never after did any business except so far as appears in this bill. The committee of the directors went to Washington on Saturday night, and on Monday, May 22d, saw the comptroller, who appointed the plaintiff receiver about ten o'clock A. M., and the plaintiff left Washington on Monday, and on the following day arrived in Boston, and took possession of the bank. For some time before this, and ever since the resuscitation of the bank after its first failure, the Pacific Bank, not being a member of the Boston clearing-house, had been in the habit daily of depositing with the defendant all checks received by the Pacific Bank, to be collected through the clearing-house by the defendant, with which the Pacific Bank was credited as a depositor, and against which it drew. On Monday morning, May 22d, Whitney, the cashier of the Pacific Bank, received by mail, as usual, many letters inclosing drafts and checks, and sent all these checks and drafts, amounting to $10,967.95, to the defendant bank, where they were received, and forthwith sent to the clearing-house, with other checks, to be cleared by defendant. The messenger who carried the checks to the defendant took at the same time and presented to the defendant a check drawn by Whitney for $11,008.20, being the whole amount of the checks then deposited, and $40.25 already to the credit of the Pacific Bank on its current deposit account with the defendant. The defendant's paying teller, at the messenger's request, gave him the defendant's negotiable certificate of deposit, payable on demand, for the said sum of $11,008.20. The defendant at that time held the negotiable certificate of deposit of the Pacific Bank, payable on demand, for $10,000.' The copies of those certificates are hereinbefore set forth. 'These transactions took place as early as half-past nine on the morning of May 22d, and no officer or the defendant bank then knew or suspected that the Pacific Bank was insolvent or contemplating insolvency, or was not doing business as usual, or that its directors had voted to close it, or that application was to be made for a receiver, and no application had, in fact, at that time been made to the comptroller, it being made about 10 A. M. of that day.' The parties had duly demanded of each other payment of their respective claims. The bill of exceptions also states as follows: 'There was other evidence given in the case on both sides, and particularly on the question whether any, and, if any, what agreement was afterwards made between Whitney, the cashier of the Pacific Bank, and Batt, the cashier of the defendant bank, as to the terms and conditions on which the deposit made on May 22d, as above stated, should be held by the defendant, part of this evidence consisting of a letter from Whitney to Batt.' It then proceeds: 'The defendant requested the judge to submit to the jury the three following question: First, whether or not there was in fact any view or intent on the part of the Pacific Bank, or any of its officers, to give a preference to the defendant over other creditors, or to prevent the application of the assets of the Pacific Bank in the manner prescribed in the bank act; second, whether or not any subsequent agreement was made varying the relation of the two banks as they existed at the time the checks were deposited; third, if the jury answer the preceding question in the affirmative, whether or not such agreement was expressed in Whitney's letter. The defendant at the same time prayed the judge to give several rulings on matters of law applicable to the facts as they might be found by the jury on the above issues. But the judge refused to submit the above or any questions whatever to the jury, or to give any of the rulings prayed for, on the ground that the issues were immaterial, and that there was no question for the jury, and ruled, as matter of law, that, on the undisputed facts in the case, the plaintiff was entitled to recover the amount of the checks and drafts deposited by the Pacific Bank in defendant's bank on Monday.' The court directed a verdict for the plaintiff for $12,232.88, that being the amount of the checks and drafts, with interest from the date of the writ, and the defendant excepted to such rulings and refusals to rule. The view taken by the circuit court was that, under section 5242, the transfer or payment by a bank, to be void, must be made after the commission of an act of insolvency, or in contemplation thereof, and with a view to prevent the application of its assets as provided by law, or with a view to giving a preference to one creditor over another; that the undisputed facts of the case showed that the act of the cashier could, under the circumstances, have no other result, if allowed to stand, than to operate as a preference in favor of the Security Bank; that the Pacific Bank had decided to close its doors and go into liquidation; that after that the necessary consequence of the transfer was to creat a preference; that it could not be said that the transfer was made with the intention of going on in business, nor could it be contended that it was made to save the credit of the bank; and that, after the vote of the directors to close the bank and go into liquidation, any transfer of its assets to a creditor, whereby that creditor secured a preference, must be presumed to be made with an intent to prefer. We concur in this view of the case. The directors of the Pacific Bank held a meeting on the afternoon of Saturday, May 20, 1882, after the regular close of business for that day, and passed three votes: (1) To go into liquidation; (2) that the bank be closed to business; (3) that the president, two directors, and another person be a committee to go to Washington and confer with the comptroller of the currency as to the measures proper to be taken, and that, if the comptroller should deem it necessary to appoint a receiver, the directors unanimously recommended for that position Mr. Whitney, the cashier, and that, if he should be appointed receiver, the directors would furnish satisfactory bonds for his faithful discharge of the duties, to any amount which the comptroller might require. These votes and the proposed action the directors purposely kept concealed. The bank never afterwards did any business, except so far as appeared in the bill of exceptions. The committee of the directors went to Washington on Saturday night, and on Monday, May 22, 1882, saw the comptroller, who appointed Mr. Price to be the receiver, about 10 o'clock A. M., and he left Washington on Monday, and on Tuesday arrived in Boston, and took possession of the bank. Although the Pacific Bank, not being a member of the Boston clearing-house, had been in the habit of daily depositing the checks received by it with the defendant, to be collected by the latter through the clearing-house, the Pacific Bank being credited as a depositor and drawing on the Security Bank against the checks; and although it was in accordance with that custom that Mr. Whitney, the cashier of the Pacific Bank, sent the checks and drafts, amounting to $10,967.95, to the Security Bank on Monday, May 22, 1882, to be cleared by it, drawing for the $11,008.20 at the time, and receiving in return, on its own request, from the Security Bank, a negotiable certificate of deposit of that bank, payable to the order of Mr. Whitney on the return of the certificate properly indorsed,—yet Mr. Whitney knew at the time of these transactions that the certificate of deposit for $10,000, given by him to the Security Bank nine days before, created an indebtedness of the Pacific Bank to the Security Bank for that amount, and was, though negotiable, presumably still held by that bank. It was in fact still held by it. The natural presumption was that, if the certificate were still held by the Security Bank, that bank would, as soon as it should learn that the Pacific Bank was closed to business, seek to retain out of the collections the amount of such certificate, and apply that amount to its payment. It is sufficient, under section 5242 of the Revised Statutes, to invalidate such a transfer, that it is made in contemplation of insolvency, and either with a view to prevent the application of the assets of the bank in the manner prescribed by chapter 4, tit. 62, Rev. St., or with a view to the preference of one creditor to another. Certainly, the transfer in question was made in contemplation of insolvency, made as it was after the directors had voted that the bank should go into liquidation, and should be closed to business, and that a receiver should be appointed; and is was made with a view, on the part of the Pacific Bank and of its cashier, who represented it and acted for it in this transfer of its assets, to prevent the application of its assets in the manner prescribed by such chapter 4 of title 62, and with a view to prefer the Security Bank to other creditors. The transaction, if allowed to stand, could result in nothing else. The statute made it void, although there was no such view on the part of the Security Bank in receiving the transfer of the assets, and although there was no knowledge or suspicion at that time on the part of the Security Bank that the Pacific Bank was insolvent, or contemplated insolvency, or was not doing business, or that its directors had voted to close it, or that application was to be made for a receiver, and although the transfer took place before the application was actually made to the comptroller for the appointment of a receiver. There was no question of fact to be submitted to a jury. From the facts proved the intent to prefer on the part of the Pacific Bank was a necessary conclusion, and it was correct in the district court to direct a verdict for the plaintiff. If any other verdict, on the facts proved, had been rendered, it would have been the duty of that court to set it aside. Nor was there any error on the part of the district court in refusing to submit to the jury the second and third questions which the defendant requested the judge to submit to them. The bill of exceptions does not set forth what the 'other evidence' given in the case was, in regard to any subsequent agreement between the cashiers of the two banks, as to the holding of the deposit by the Security Bank. The court ruled that the issues involved in such second and third questions were immaterial, and this court cannot hold otherwise, on the facts set forth in the bill of exceptions. 'Any subsequent agreement' must have been made after the receiver had been actually appointed, and could not affect his rights. The defendant objects that the rulings of the district court were made, and the verdict and judgment were rendered generally, on the plaintiff's declaration of three counts; and that the first count, which seeks to recover back the money deposited as an unlawful payment, is inconsistent with the second count, which seeks to recover on the certificate of deposit as a valid instrument It is a sufficient answer to this contention to say that no objection was made to the declaration by way of demurrer or otherwise, at the trial or before, and no ruling on the subject was asked for at the trial, or was made the subject of an exception. No objection or exception was taken to the verdict, nor did the defendant request at the trial that the plaintiff should elect on which count he would ask a verdict, nor did the defendant request the court to ask the jury to state on which count of the declaration the verdict was rendered. We see no inconsistency between the first and second counts of the declaration. They were in substance for the same cause of action, and the first count is clearly sufficient to support the verdict. Judgment affirmed.
130.US.482	An appeal prayed and granted in a Circuit Court "of this cause to the Supreme Court" brings the whole case here, including orders previously made in it. A party to a decree in a state court in a matter subject to its jurisdiction cannot attack it collaterally in a suit commenced in a Circuit Court of the United States after the jurisdiction of the state court had attached. It is immaterial whether the receiver's certificates, which are in controversy in this suit were properly issued to the appellee, for the reason that: (1) it is apparent that the order of the state court under which they were issued was the result of an agreement between the parties to this suit; and (2) if they should be held to be invalid the appellee could not be restored to the rights under the decree of the state court which he surrendered for them.	The motion of appellee to dismiss this appeal is denied. If, as contended by him, the order of December 8, 1883, was one from which an appeal would lie, the appeal prayed and allowed on the 20th of November, 1885, would bring that order before us; for, although the bond required by the court was made to operate as a supersedeas only of the order of the latter date, the appeal asked and granted was 'of this cause,'—that is, of the whole cause as far as it had then progressed. Conceding appellee's lien on the lots to be prior to its lien on so much of the railroad as crossed those lots, the appellant denies that appellee had a lien upon the entire road of the Cincinnati Northern Railway Company. The proceeds of the sale of the whole road, it is insisted, must be distributed between the appellant and the appellee, upon the basis of the proportionate value of the parts upon which their respective liens rested; not necessarily the mathematical proportion of the 320 feet of the railroad covering the lots in question to the entire length of the road,—42 miles,—but in the proportion of the fair value, all things considered, of the former to the latter. The precise mode of ascertaining this value was not suggested in the argument. We are of opinion that the appellant is not in a condition to raise the question just stated. It was a party to the suit in the state court, the decree in which provided for a sale of the entire road in the event the sum found to be due the present appellee was not paid by the sale of such parts of the lots in question as were not needed for the railroad. That decree, even if erroneous, was binding upon all the parties to the suit in which it was rendered, until modified or reversed by the supreme court of Ohio. It was not open to collateral attack by any of those parties in a separate suit brought by them in the circuit court of the United States after the jurisdiction of the state court attached. No order in the former court could interfere with or suspend the sale which the state court had directed to be made. The only way in which such suspension could have been effected was by means of an arrangement that would be satisfactory to the present appellee, in whose behalf the state court had ordered a sale of the entire road. The order made in the circuit court on the 8th of December, 1883, shows upon its face that that court was informed as to the exact relation of the parties to the suit in the state court. It declared, without objection by any of the parties, that the sale then about to take place of the entire road, under the order of the state court, 'would be contrary to the best interests of all concerned,' and that it was necessary to the operation of the road by the receiver of the circuit court that the proceedings in the state court for a sale be stopped. The mode adopted to effect that end is indicated in the above order. We need not, however, stop to inquire whether it was proper for the circuit court to issue receiver's certificates for claims of the character of those held by the appellee. Upon that subject we express no opinion. We are relieved of any duty to consider that question, because it is apparent that the order of December 8, 1883, was the result of an agreement or arrangement between the appellee and the Central Trust Company,—the latter representing in this cause the holders of bonds secured by the mortgage of November 17, 1880,—and also because of the surrender by the appellee, in consideration of the receiver's certificate for the amount of his claims, of the rights accorded to him by the decree in the state court. The appellee cannot be restored to his rights under the decree of the state court, and it would be inequitable to permit the appellant, representing those who purchased the property under the decree of the circuit court, now to raise any question as to the validity of the receiver's certificates, which it agreed might be issued to the appellee. It remained quiet for nearly two years, and until after the property had been sold, and after the sale had been confirmed to those it represented, before making an issue as to the propriety or validity of the order of December 8, 1883. The bondholders are concluded, under the circumstances disclosed in the record, by what their representative did, or assented to being done, in order to induce the appellee to surrender the rights secured by the judgment of the state court. The decree of the circuit court is affirmed.
129.US.263	Claims 1,, 2, 8 and 13 of letters patent No. 236,350, granted January 4, 1881, to James H. Morley, E. S. Fay and Henry E. Wilkins, on the invention of said Morley, for an improvement in machines for sewing buttons on fabrics, namely, " 1. The combination, in a maclne for sewing shank-buttons to fabrics, of button-feeding mechanism, appliances for passing a thread through the eye of the buttons and locking the loop to the fabric, and feeding mechanism, substantially as set forth. 2. The combination, in a machine for sewing shank-buttons to fabrics, of a needle and operating mechanism, appliances for bringing the buttons successively to positions to permit the needle to pass through the eye of each button, and means for locking the loop of thread carried by the needle to secure the button to the fabric, substantially as set forth." "8. The combination, in a machine for sewing buttons to fabrics, of button-feeding and sewing appliances, substantially as set forth, and feeding appliances and operating mechanism whereby the feeding devices are moved alternately different distances to alternate short button stitches with long stitches between the buttons, as specified." " 13. The combination, with button-sewing appliances, of a trough, appliances for carrying the buttons successively from the trough to the sewing devices, and mechanism for operating said appliances and sewing devices, as set forth," are valid. The Morlev machine contains and is made up of three main groups of instrumentalities: (1) mechanism for holding the buttons in mass, and delivering them separately in proper position, over the fabric, so that they may be attached to it by the sewing and stitching mechanism, (2) the stitching mechanism, (3) the mechanism for feeding the fabric along, so as to space the stitches and consequently the buttons when sewed on. A description given of the devices used by Morley which make up the three mechanisms; and of those used in the alleged infringing machine, (the Lancaster machine,) and making up the same three mechanisms. The Morley machine was the first one which accomplished the result of automatically separating buttons which have a shank from a mass of the same, conveying them in order to a position where they can be s.elected by the machine, one after another, and, by sewing mechanism, coupled with suitable mechanism for feeding the fabric, be sewed thereto at prescribed suitable distances apart from each other. No machine existing prior to Morley's is shown to have accomplished the operation of turning a shank button, the head of which is heavier than its shank and eye combined, into such a position that a plane passing through its eye shall be perpendicular to a plane passing through the long axis of the sewing needle, so as to insure the passage of the -needle through the eye. The Lancaster machine infringes the Morley patent, although there are certain specific differences between the button-feeding mechanisms in the two machines, and also certain specific differences between their sewing mechanisms. Morley, having been the first person who succeeded in producing an automatic machine for sewing buttons of the kind in question upon fabrics, is entitled to a liberal construction of the claims of his patent. Where an invention is one of a primary character, and the mechanical functions performed by the machine are, as a whole, entirely new all subsequent machines which employ substantially the same means to accomplish the same result are infringements, although the subsequent machine may contain improvements in the separate mechanisms which go to make up the machine. Morley having been the first inventor of an automatic button-sewing machine, by uniting in one organization mechanism for feeding buttons from a mass, and delivering them one by one to sewing mechanism and to the fabric to which they are to be secured, and sewing mechanism for passing a thread through the eye of the button, and securing it to the fabric, and feeding mechanism for moving the fabric the required distances to space the buttons, another machine is an infringement, in which such three sets of mechanism are combined, provided each mechanism. individually considered, is a proper equivalent for the corresponding mechanism in the Morley patent, and it makes no difference that, in the infringing machine, the button-feeding mechanism is more simple, and the sewing mechanism and the mechanism for feeding the fabric are different in mechanical construction, so long as they perform each the same function as the corresponding mechanism in the Morley machine, in substantially the same way and are combined to produce the same result. The defendant employs, for the purposes of his machine, known devices, which, in mechanics, were recognized as proper substitutes for the devices used by Morley to effect the same results. In this sense the mechanical devices used by the defendant are known substitutes or equivalents for those employed in the Morley machine to effect the same results; and this is the proper meaning of the term" known equivalent," in reference to a pioneer machine such as that of Morley. Otherwise, a difference in the particular devices used to accomplish a particular result in such a machine would always enable a defendant to escape the charge of infringement, provided such deviceq§ were new with the defendant ill such a machine, because, as no machine for accomplishing the result existed before that of the plaintiff, the particular device alleged to avoid infringement could not have existed or been known in such a machine prior to the plaintiff's invention. IN EouiTy, for the infringement of letters patent. Decree dismissing the bill, from which the complainants appealed. The case is stated in the opinion.	This is a suit in equity, brought November 6, 1882, in the circuit court of the United States for the District of Massachusetts, by the Morley Sewing-Machine Company and the Morley Button-Sewing Machine Company against Charles B. Lancaster, for the alleged infringement of letters patent No. 236,350, granted January 4, 1881, to James H. Morley, E. S. Fay, and Henry E. Wilkins, on the invention of said Morley, on an application filed June 23, 1880, for an improvement in machines for sewing buttons on fabrics. The machine of the defendant is constructed in accordance with the description contained in letters patent No. 268,369, granted November 28, 1882, to Joseph Mathison, William D. Allen, and C. B. Lancaster, on the invention of said Mathison, for improvements in machines for securing buttons to material, on an application filed August 1, 1882. The specification of the Morley patent says: 'My invention consists in mechanism for automatically sewing shank-buttons onto fabrics, shoes, etc., and the objects of my invention are to form a double-threaded stitch on the top side of the material being sewed upon, transversely to the direction of feed, and on the reverse side of the material two parallel lines of stitches at right angles to the first-named ones, to make alternately long and short stitches, and to so feed buttons to be sewed by said machines as to present them at the proper time and in the proper place to be operated upon.' The specification then describes, by reference to 24 figures of drawings, the mechanical means used by the patentee to perform the mechanical operations described. The specification them proceeds: 'Having thus described the machine and constructions set forth in the drawings, I wish it to be understood that the same is only one of different mechanisms which I have contemplated, and which may be effectually employed for carrying out the main feature of my invention, to-wit, the automatic mechanical sewing of buttons to a fabric. Thus, different means may be adopted for carrying the thread through the eye of the button into the fabric, as, for instance, passing the hooked needle through said eye to a position to seize the thread from the straight needle, or form a suitable carrier and then draw the loop down through the fabric to be secured beneath by a shuttle or needle thread, or the eye-pointed needle may be used in connection with a loop-spreader and shuttle for carrying a thread through the loop, a single thread or two threads being used. It will further be understood that wires may be sometimes substituted for threads, and that other feed mechanisms may be employed, the needles moving with, but not controlling, the fabric, as in the construction described.' There are 18 claims in the patent, only four of which are relied upon by the plaintiffs, namely, claims 1, 2, 8, and 13, which are as follows: '(1) The combination, in a machine for sewing shank-buttons to fabrics, of button-feeding mechanism, appliances for passing a thread through the eye of the buttons and locking the loop to the fabric, and feeding mechanism, substantially as set forth. (2) The combination, in a machine for sewing shank-buttons to fabrics, of a needle and operating mechanism, appliances for bringing the buttons successively to positions to permit the needle to pass through the eye of each button, and means for locking the loop of thread carried by the needle to secure the button to the fabric, substantially as set forth.' '(8) The combination, in a machine for sewing buttons to fabrics, of button-feeding and sewing appliances, substantially as set forth, and feeding appliances and operating mechanism, whereby the feeding devices are moved alternately different distances to alternate short button stitches with long stitches between the buttons, as specified.' '(13) The combination, with button-sewing appliances, of a trough, appliances for carrying the buttons successively from the trough to the sewing devices, and mechanism for operating said appliances and sewing devices, as set forth.' The defendant's machine is known as the 'Lancaster Machine.' The Morley machine contains and is made up of three main groups of instrumentalities: (1) Mechanism for holding the buttons in mass, and delivering them separately, in proper position, over the fabric, so that they may be attached to it by the sewing and stitching mechanism; (2) the stitching mechanism; (3) the mechanism for feeding the fabric along, so as to space the stitches and consequently the buttons when sewed on. In the button-feeding mechanism, there is a hopper containing the buttons in mass. The principal use of the machine is to sew buttons onto the uppers of buttoned boots, and the button designed to be used is one having a round ball affixed to a shank, which terminates in an eye. On the bottom of the hopper is a hopper-valve, which picks out the buttons one by one and delivers them into an inclined trough. This trough has a V-shaped groove along its bottom, midway between its sides, and the buttons enter the upper part of the trough with their shanks in all directions, and it becomes necessary to turn them over, so that the eyes will lie in the groove while the bodies of the buttons occupy the trough. The contrivance for accomplishing this consists of a flexible, corrugated strip of metal, lying over the top of the trough, and oscillated by proper machinery, which, by contact with the bodies of the buttons, will roll them over so that their eyes will lie in the groove. After the buttons are thus arranged, they slide down the trough, being aided to do so by a jarring motion imparted to the latter. When they arrive at its lower end, which is bent so as to be nearly vertical, they lie with their heads towards the front of the machine, that is, the side furthest from the driving pulley. In one modification of the machine, the buttons are held in the trough by a button-wheel, which is mounted on a vertical axis, and is provided with pockets, each capable of receiving a button, and admits of being intermittently revolved at proper times. This button-wheel is used (1) to close the bottom of the trough; (2) to receive buttons into its pockets; and (3) by its own revolution to turn the buttons around, so that their eyes will lie towards the front of the machine. In order to prevent the buttons from falling out of the pockets, the button-wheel rests upon a stationary table, which closes the bottoms of all of the pockets but one. When a button arrives over the notch in the table, it has been turned around, on a vertical axis, 180 deg.; but, as a plane passing through its eye is then vertical, it must be turned on a horizontal axis through 90 deg., so that its eye may lie flat, in order that the needle, which ascends from beneath, may pass through the eye. Therefore, when a button arrives over the notch in the table, a plunger or punch descends into the pocket, and drives the button into a button-carrier, which lies at that time immediately under the notch, and under the pocket into which the punch enters. When the button enters the carrier, a plane passing through its eye is still vertical, and the carrier therefore turns around on a horizontal axis 90 deg., to bring the eye of the button into such a position that it can be entered by the needle; and, as the carrier turns, it retracts, so as to bring the eye into such a position that a plane passing through it will be horizontal, and the needle will readily enter it. The patent describes a modified form of the contrivances for bringing the button into a position for the needle to enter its eye, in which modification the button-wheel is dispensed with, and a light spring is applied to the bottom of the trough, to hold up the column of buttons, such spring operating as a spring gate, opened at proper intervals by mechanism, and shutting itself automatically. This mechanism, which also receives the button and turns it around 90 deg. on a horizontal axis, and transfers it to the place where it is to be sewed, is a sort of spring nippers, one of the jaws of which is split so as to receive the shank of the button. The above contrivances constitute what is called in claim 1, 'button-feeding mechanism;' in claim 2, 'appliances for bringing the buttons successively to positions to permit the needle to pass through the eye of each button;' in claim 8, 'button-feeding appliances;' and in claim 13, 'a trough, appliances for carrying the buttons successively from the trough to the sewing devices, and mechanism for operating said appliances.' In the Morley patent there is a contrivance for feeding the fabric so as to space the stitches, and consequently to space the buttons. The needles, while inserted in the fabric, move in the direction of the feed, carrying the fabric with them. The motion of the needles or feed is derived from revolving cams, and the two needles swing like an inverted pendulum. This kind of feed was well known in machines for sewing leather, prior to the date of the Morley patent. This feeding contrivance is what is called in claim 1, 'feeding mechanism,' and in claim 8, 'feeding devices.' The Morley patent describes its stitch as being made by means of two needles, one eye-pointed, like the Howe needle, and the other a hooked or crochet needle, such as is used in machines for sewing leather. These needles are set at an inclination to each other, across the line of the seam, and enter the fabric from beneath, and, when they get above it, cross each other. The eye-pointed needle pierces the fabric and carries a bight of thread up above it, and then retreats a little to form a loop by causing the thread to expand away from the needle. During this time, the hooked needle has also penetrated the fabric from beneath, and, when the loop is formed, passes between the eye-pointed needle and the thread, and, as both needles descend, the hook catches the thread supplied by the eye-pointed needle, and carries a bight of thread across the fabric and down through it to the under side, thus forming the transverse stitches on the button side of the fabric, the eye-pointed needle being described as passing through the eye of the button, although it is stated that instead the hooked needle may pass through such eye. The passage of the needle through the eye, after it has passed through the fabric, holds the button upon the fabric. When the eye-pointed needle retracts and forms a loop above the eye of the button, a loop-spreader is employed to spread the loop, and a shuttle, carrying either one thread or two threads, is passed through the loop, the eye-pointed needle, in its retraction, carrying, by means of the loop, the thread or threads furnished by the shuttle, and the stitch being the ordinary lockstitch. The stitch described in the Morley patent as made by eye-pointed and hooked needles, both operating from the lower side of the fabric, and making transverse stitches on its upper side and longitudinal stitches on its lower side, is a stitch known prior to the date of the Morley patent. In the Lancaster machine there are found combined together the same three main groups of instrumentalities above set forth as being found in the Morley patent. There are in the Lancaster machine a hopper containing the buttons in mass, and an inclined surface, which supports a column of the buttons, the buttons lying with their shanks up and their bodies down. This hopper is provided with a reciprocating brush, which sweeps over the buttons and rolls them over so that their shanks, pointing upward, will fall into one or another of slits in a metal plate which covers the inclined flat surface. These slits all converge into a single slit, so that the buttons slide down the various slits and ultimately lie in a single column in the single slit, with their shanks upward, upon an inclined plane surface. This single slit, and the plane surface which it covers, are twisted at the end, in such a manner that a plane passing through the slit is nearly horizontal, and the surface which is in contact with the head of the button is nearly vertical. Consequently, when the buttons reach the bottom, they lie in such a position that a plane passing through the eye of the lowermost button is horizontal, or nearly so. The column of buttons is held up by a light spring, and this spring gate is opened by the button itself, because the so-called trough holding the column of buttons vibrates sidewise, and a thread which passes through the eye of the lowermost button prevents that button from vibrating with the contrivance, and the button is pulled out by the thread, and, in being pulled out, overcomes the resistance of the spring. The eye of the lowermost button in the column lies directly under the needle, so that the needle enters it while it is still in the column. The contrivance containing the column then vibrates sidewise, so as to get out of the way of the needle in a subsequent feeding operation. The spring in the Lancaster machine, which holds up the column of buttons, was a common device in screw blank and eyelet machinery, to hold up a column of blanks, and permit them to be removed one by one. In the Lancaster machine, there is a contrivance for feeding the fabric so as to space the stitches, and consequently to space the buttons, and the machine feeds by means of a single needle, which reciprocates in a straight line, and, while it is inserted in the fabric, moves in the direction of the feed, carrying the fabric with it, the motion of the needle or feed being derived from revolving cams. The expert for the defendant says that he finds no substantial difference between the mechanism which feeds the fabric in the two machines. As to the stitching mechanism of the Lancaster machine, the needle is on the upper side of the fabric, and descends through it. It is an ordinary crochet needle, provided with a cast-off, both the needle and the cast-off being like those described in the Morley patent, and the same which had been used for many years in sewing leather. The machine is also provided with a thread-carrier beneath the fabric, like that used in machines for sewing leather. The eye of the button in the Lancaster machine makes a part of the stitch, and the stitch cannot be made unless a button is supplied at every alternate perforation of the needle. It is therefore necessary that the machine should have some contrivance for carrying some of the loops of the thread over the bodies of the buttons, so that the loop may be locked by the eye of the button. In making the stitch the needle first passes down through the eye of the button, carrying its hook below the fabric. The thread-carrier beneath the fabric then puts a loop of thread into the hook, and the hook rises, pulling a loop of thread through the fabric, and through the eye of the button. The needle then descends again, sliding through such loop, and piercing the fabric, and leaving the loop on top of the fabric. The thread-carrier then again puts the thread into the hook of the needle, and the needle rises again, carrying another bight of the thread through the fabric, and through the loop on top of the fabric, thus locking that loop. As the needle rises, a contrivance seizes both parts of the loop carried up through the second hole made by the needle, opens it wide and passes it over the body of the button, and the part of the loop which is over the button is then pulled down through the fabric, and consequently around the shank of the button, thus locking the stitch. A succession of these operations forms the stitch, and sews a row of buttons on the fabric, each alternate loop of the stitch being locked by the button itself. If the buttons were removed from the stitch, there would remain a succession of loops, and consequently no seam. In the operation of the Lancaster machine, after the needle has passed through the eye of the button, the end of the so-called trough and the needle move together, while the needle is making its feeding motion. The so-called trough then stands still until the needle has ascended and pulled a loop of thread through the eye, and has again pierced the fabric. When the needle has got into the fabric the second time, the button is pulled out of the end of the trough by the retreat of the trough towards the rear of the machine, and is so pulled out because at that time the fabric is standing still and the button is held to it by the loop of thread which is passed through the eye of the button. After the button is thus pulled out of the end of the trough, the trough stands still for a while, while a loop is passed over the body of the button, as above described, and the trough then returns again, so as to hold the eye of a second button in the path of the descending needle, the button being thus released, not by the motion of the fabric, but by the motion of the trough which carries the column of buttons. It satisfactorily appears that the Morley machine was the first one which accomplished the result of automatically separating buttons which have a shank from a mass of the same, conveying them in order to a position where they can be selected by the machine, one after another, and, by sewing mechanism, coupled with suitable mechanism for feeding the fabric, be sewed thereto at prescribed suitable distances apart from each other. The machine performs automatically these three functions of selecting, sewing, and spacing. The problem to be performed was to select from a mass of buttons, furnished with heads, and with wire eyes projecting therefrom, single buttons, and to present them in succession to the needle of a sewing mechanism, so that the needle could pass through the eye and secure it to the fabric. Machinery existed before for selecting from a mass wood-screw blanks, horse nails, and pins, and delivering them to other machinery; but, in such constructions, the shank of the article being heavier than its head, the tendency was for the articles to arrange themselves in the way with the shanks downward, the heads being supported on the top surface of the way. With such buttons as are used in the two machines in controversy, as the heads are much heavier than the shanks and the eyes combined, the buttons will not naturally arrange themselves with their shanks downward. It is therefore necessary to have some means for turning each button into such a position that a plane passing through its eye shall be perpendicular to a plane passing through the long axis of the sewing needle, so as to insure the passage of the needle through the eye. No machine existing prior to Morley's is shown to have accomplished that operation. The substance of the defense in the case is that there are certain specific differences between the button-feeding mechanisms in the two machines, and also certain specific differences between their sewing mechanisms; and hence that there is no infringement. This was the view taken by the circuit court in its opinion. 23 Fed. Rep. 344. Morley, having been the first person who succeeded in producing an automatic machine for sewing buttons of the kind in question upon fabrics, is entitled to a liberal construction of the claims of his patent. He was not a mere improver upon a prior machine, which was capable of accomplishing the same general result; in which case his claims would properly receive a narrower interpretation. This principle is well settled in the patent law, both in this country and in England. Where an invention is one of a primary character, and the mechanical functions performed by the machine are, as a whole, entirely new, all subsequent machines which employ substantially the same means to accomplish the same result are infringements, although the subsequent machine may contain improvements in the separate mechanisms which go to make up the machine. In McCormick v. Talcott, 20 How. 402, 405, the inquiry was whether McCormick was the first person who invented, in a reaping machine, the apparatus called a 'divider,' performing the required functions, or whether he had merely improved an existing apparatus, by a combination of mechanical devices which performed the same functions in a better manner. This court, speaking by Mr. Justice GRIER, said: 'If he' (the patentee) 'be the original inventor of the device or machine called the 'divider,' he will have a right to treat as infringers all who make dividers operating on the same principle, and performing the same functions by analogous means or equivalent combinations, even though the infringing machine may be an improvement of the original, and patentable as such. But if the invention claimed be itself but an improvement on a known machine by a mere change of form or combination of parts, the patentee cannot treat another as an infringer, who has improved the original machine by use of a different form or combination, performing the same functions. The inventor of the first improvement cannot invoke the doctrine of equivalents to suppress all other improvements which are not mere colorable evasions of the first.' So, also, in Railway Co. v. Sayles, 97 U. S. 554, 556, this court, speaking by Mr. Justice BRADLEY, said, in regard to brakes for eight-wheeled railroad cars: 'Like almost all other inventions, that of double brakes came when, in the progress of mechanical improvement, it was needed; and, being sought by many minds, it is not wonderful that it was developed in different and independant forms, all original, and yet all bearing a somewhat general resemblance to each other. In such cases, if one inventor precedes all the rest, and strikes out something which includes and underlies all that they produce, he acquires a monopoly, and subjects them to tribute. But if the advance towards the thing desired is gradual, and proceeds step by step, so that no one can claim the complete whole, then each is entitled only to the specific form of device which he produces, and every other inventor is entitled to his own specific form, so long as it differs from those of this competitors, and does not include theirs. These general principles are so obvious that they need no argument or illustration to support them.' The same view was directly applied in Clough v. Barker, 106 U. S. 166, 177, 1 Sup. Ct. Rep. 188, 198, to the Clough patent for an improvement in gas-burners. The first claim of that patent was for 'the bat-wing burner, perforated at the base, in combination with the surrounding tube, substantially as described.' The second claim read thus: 'In combination with the bat-wing burner, perforated at the base, the surrounding tube, the tubular valve for regulating the supply of external gas to the burner, substantially as described.' It appeared that in no prior structure had a valve arrangement been applied to regulate the flow of gas in such a combination as that covered by the first claim of the patent. It was therefore held, that the patentee was entitled to the benefit of the doctrine of equivalents, as applied to the combination covered by the second claim. In the defendant's burner, the regulation was made by a tubular valve on the outside of the perforations, instead of on the inside, as in the patent, but performing its work by being screwed up or down, as in the patent. This court said: 'Although in the Clough structure the burner and surrounding tube revolve together in adjusting their position in reference to that of the tubular valve, so as to let in or turn off the supply of gas through the perforations, and although in the Clough structure the flame revolves by the revolution of the burner, and although in the defendant's burners the revolution of the surrounding tube regulated the supply of gas through such perforations, and neither the burner nor the flame revolved, the defendants' valve arrangement must be held to have been an equivalent for that of Clough to the full extent to which that of Clough goes, involving, perhaps, patentable improvements, but still tributary or subject to the patent of Clough. It is true that that patent describes the tubular valve as being inside of the burner-tube; but Clough was the first person who applied a valve regulation of any kind to the combination to which he applied it, and the first person who made such combination; and he is entitled, under decisions heretofore made by this court, to hold as infringements all valve regulations, applied to such a combination, which perform the same office in substantially the same way as, and were known equivalents for, his form of valve regulation.' See, also, Duff v. Pump Co., 107 U. S. 636, 639, 2 Sup. Ct. Rep. 487. The same doctrine was applied by this court in Valve Co. v. Valve Co., 113 U. S. 157, 5 Sup. Ct. Rep. 513, to the Richardson patent, the claim of which was: 'A safety-valve, with the circular or annular flange or lip, cc, constructed in the manner, or substantially in the manner, shown, so as to operate as and for the purpose herein described.' It appeared that Richardson was the first person who made a safety-valve which, while it automatically relieved the pressure of steam in the boiler, did not, in effecting that result, reduce the pressure to such an extent as to make the use of the relieving apparatus practically impossible, because of the expenditure of time and fuel necessary to bring up the steam again to the proper working standard; and that his valve was the first which had a strictured orifice leading from the huddling chamber to the open air, to retard the escape of the steam, and to enable the valve to open with increasing power against the action of the spring, and to close suddenly, with small loss of pressure in the boiler. It was held that that claim covered a valve in which were combined an initial area, an additional area, a huddling chamber beneath the additional area, and a strictured orifice such as that above mentioned, the orifice being proportioned to the strength of the spring. It was also held that, under the claim of a second patent, namely, 'the combination of the surface beyond the seat of the safety-valve, with the means herein described for regulating or adjusting the area of the passage for the escape of steam, substantially as and for the purpose described,' the patentee was entitled to cover the combination, with the surface of the huddling chamber and the strictured orifice, of a screw-ring to be moved up or down to obstruct such orifice more or less, in the manner described. It was further held that both of the patents were infringed by a valve which produced the same effects in operation by the means described in Richardson's claims, although the valve proper was an annulus, and the extended surface was a disk inside of the annulus; the Richardson valve proper being a disk, and the extended surface an annulus surrounding the disk; and although the valve proper of the defendant had two ground joints, and only the steam which passed through one of them passed through the stricture, while, in the Richardson valve, all the steam which passed into the air passed through the stricture; and although in the defendant's valve the huddling chamber was at the center, instead of at the circumference, and was in the seat of the valve, under the head, instead of in the head, and the stricture was at the circumference of the seat of the valve, instead of being at the circumference of the head. These conclusions were based on the fact, stated in the opinion of the court, that no prior structure was known or recognized as producing any such result as that produced by Richardson's apparatus; that the prior structures never effected the kind of result attained by his apparatus, because they lacked the thing which gave success; and that, taught by Richardson, and by the use of his apparatus, it was not difficult for skilled mechanics to take the prior structures, and so arrange and use them as to produce more or less of the beneficial results first made known by him. The doctrine thus applicable to a machine patent is of a kindred character with that applied in this country and in England to a patent for a process. In Tilghman v. Proctor, 102 U. S. 707, the claim of Tilghman's patent was for 'the manufacturing of fat acids and glycerine from fatty bodies by the action of water at a high temperature and pressure.' In the opinion of this court, delivered by Mr. Justice BRADLEY, the claim was sustained as a claim for a process, irrespective of the particular mode or form of apparatus for carrying it into effect, inasmuch as the patent described a practical and useful mode of carrying it into effect. It was said in the opinion, (page 721:) 'Had the process been known and used before, and not been Tilghman's invention, he could not then have claimed anything more than the particular apparatus described in his patent; but, being the inventor of the process, as we are satisfied was the fact, he was entitled to claim it in the manner he did.' It was also held that, in such a case, a person who subsequently discovers a new mode of carrying out the patented process is not entitled to use the process without the consent of the patentee. Reference was made in the opinion in that case to the decision in Neilson v. Harford, 1 Webst. Pat. Cas. 295, which related to Neilson's patent for the process of applying a blast of heated air to anthracite coal in a smelting furnace, by forcing such blast through a vessel situated between the blowing apparatus and the furnace, and heated to a red heat, the form of the heated vessel being stated by the patent to be immaterial. On this question this court said: 'That a hot blast is better than a cold blast for smelting iron in a furnace, was the principle or scientific fact discovered by Neilson; and yet, being nothing but a principle, he could not have a patent for that. But, having invented and practically exemplified a process for utilizing this principle, namely, that of heating the blast in a receptacle between the blowing apparatus and the furnace, he was entitled to a patent for that process, although he did not distinctly point out all the forms of apparatus by which the process might be applied, having, nevertheless, pointed out a particular apparatus for that purpose, and having thus shown that the process could be practically and usefully applied. Another person might invent a better apparatus for applying this process than that pointed out by Neilson, and might obtain a patent for such improved apparatus; but he could not use the process without a license from Neilson. His improved apparatus would, in this respect, stand in a relation to the process analogous to that which an improvement on a patented machine bears to the machine itself.' In regard to the case of Neilson v. Harford, this court, speaking by Chief Justice TANEY, in O'Reilly v. Morse, 15 How. 62, 115, 116, said, in reference to the opinion of the court of exchequer in that case, delivered by Baron PARKE: 'We see nothing in this opinion differing in any degree from the familiar principles of law applicable to patent cases. Neilson claimed no particular mode of constructing the receptacle, or of heating it. He pointed out the manner in which it might be done; but admitted that it might also be done in a variety of ways, and at a higher or lower temperature, and that all of them would produce the effect in a greater or less degree, provided the air was heated by passing through a heated receptacle; and hence it seems that the court at first doubted whether it was a patent for anything more than the discovery that hot air would promote the ignition of fuel better than cold; and if this had been the construction, the court, it appears, would have held his patent to be void, because the discovery of a principle in natural philosophy or physical science is not patentable. But, after much consideration, it was finally decided that this principle must be regarded as well known, and that the plaintiff had invented a mechanical mode of applying it to furnaces; and that his invention consisted in interposing a heated receptacle between the blower and the furnace, and by this means heating the air after it left the blower, and before it was thrown into the fire. Whoever, therefore, used this method of throwing hot air into the furnace used the process he had invented, and thereby infringed his patent; although the form of the receptacle, or the mechanical arrangements for heating it, might be different from those described by the patentee; for, whatever form was adopted for the receptacle, or whatever mechanical arrangements were made for heating it, the effect would be produced in a greater or less degree if the heated receptacle was placed between the blower and the furnace, and the current of air passed through it. Undoubtedly, the principle that hot air will promote the ignition of fuel better than cold, was embodied in this machine. But the patent was not supported because this principle was embodied in it. He would have been equally entitled to a patent if he had invented an improvement in the mechanical arrangements of the blowing apparatus, or in the furnace, while a cold current of air was still used. But his patent was supported because he had invented a mechanical apparatus by which a current of hot air, instead of cold, could be thrown in; and this new method was protected by his patent. The interposition of a heated receptacle in any form was the novelty he invented.' This court also said in Tilghman v. Proctor, (page 728:) 'If the mode of applying the process is not obvious, then a description of a particular mode by which it may be applied is sufficient. There is, then, a description of the process and of one practical mode in which it may be applied. Perhaps the process is susceptible of being applied in many modes, and by the use of many forms of apparatus. The inventor is not bound to describe them all in order to secure to himself the exclusive right to the process, if he is really its inventor or discoverer. But he must describe some particular mode, or some apparatus by which the process can be applied with at least some beneficial result, in order to show that it is capable of being exhibited and performed in actual experience.' The English doctrine is to the same effect. In the case of Curtis v. Platt, before Vice-Chancellor WOOD, in 1863, reported in a note to Adie v. Clark, 3 Ch. Div. 134, the vice-chancellor said, (page 136,) in regard to a patent for an improvement in spinning-mules: 'When the thing is wholly novel, and one which has never been achieved before, the machine itself which is invented necessarily contains a great amount of novelty in all its parts; and one looks very narrowly and very jealously upon any other machines for effecting the same object, to see whether or not they are merely colorable contrivances for evading that which has been before done. When the object itself is one which is not new, but the means only are new, one is not inclined to say that a person who invents a particular means of doing something that has been known to all the world long before has a right to extend very largely the interpretation of those means which he has adopted for carrying it into effect.' In the same case, on appeal before the lord chancellor, (Lord WESTBURY,) (page 138,) the views of Vice-Chancellor Wood were concurred in. In Badische Anilin v. Levinstein, 24 Ch. Div. 156, 171, in regard to a patent for improvements in the production of coloring matters for dyeing and printing, Mr. Justice PEARSON said: 'Where a patent is taken out for a process for arriving at a known result, (I mean, a result known before the patent is taken out for the process simpliciter,) any other person may take out a patent for another process, or may use another process without taking out a patent, without any infringement of the process first taken out. But when a patent is taken out for a new result not known before, and there is one process described in the patent which is effectual for the purpose of arriving at that new result at the time when the patent is taken out, the patentee is entitled to protection against all other processes for the same result; and no person can, without infringing upon his patent, adopt simply a different process for arriving at the same result.' As authority for this view, he cites the cases of Jupe v. Pratt, 1 Webst. Pat. Cas. 146; Househill Co. v. Neilson, Id. 685; and Curtis v. Platt, ubi supra, in Goodeve's Pat. Cas. 102. He decided in favor of the plaintiff. On appeal to the court of appeal, 29 Ch. Div. 366, the decree was reversed, Lords Justices BOWEN and FRY being in favor of a reversal, and Lord Justice BAGGALLAY against it. On further appeal to the house of lords, 12 App. Cas. 710, the decision of the court of appeal was reversed, and the decision of Mr. Justice PEARSON was restored, Lord HALSBURY, (Lord Chancellor,) Lord HERSCHELL, and Lord MACNAGHTEN sitting in the case and concurring. In the judgment given by Lord HERSCHELL, it is stated that all the judges of all the courts were agreed on the question of infringement. A recent and instructive case is that of Proctor v. Bennis, 36 Ch. Div. 740, in regard to a patent for self-acting mechanism for supplying fuel at intervals to, and distributing it over the surface of, a fire. The court of first instance held the patent to be valid, and to have been infringed. In the court of appeal, Lords Justices COTTON, BOWEN, and FRY unanimously affirmed the decision, and held that a patent for a combination of known mechanical contrivances, producing a new result, was infringed by a machine producing the same result by a combination of mechanical equivalents of such contrivances, with some alterations and omissions, which did not prevent the new machine from being one which took the substance and essence of the patented invention; but that, where the result was old, and the novelty consisted only of improvements in a known machine for producing a known resuit, the patentee must be tied down strictly to the mode which he had described of effecting the improvements. Lord Justice COTTON, after referring to the case of Curtis v. Platt, 3 Ch. Div. 135, note, said, (page 757:) 'Where there is no novelty in the result, and where the machine is not a new one, but the claim is only for improvements in a known machine for producing a known result, the patentee must be tied down strictly to the invention which he claims, and the mode which he points out of effecting the improvement. But here the throwing coal onto the furnace by the intermittent radial action of a flap or door was new. Nothing of the kind had been done before. It is true, there had previously been imperfect machines for feeding furnaces automatically, but that had not, previously to this machine, been done by any intermittent radial action of a flap or door, as is done by the plaintiff. In my opinion, therefore, the opinions expressed by the judges with reference to mere improvements in an old machine for an old purpose cannot apply to a case like this, where there was not only novelty in the machine, but novelty in the result to be produced by that machine.' Lord Justice BOWEN said, (page 764:) 'Now, I think it goes to the root of this case to remember that this is, as was described by one of the counsel, really a pioneer invention; and it is by the light of that, as it seems to me, that we ought to consider the question whether there have been variations or omissions and additions, which prevent the machine which is complained of from being an infringement of the plaintiff's. With regard to the variations, I take precisely the same view that the Lord Justice COTTON has taken; and I will not travel over the ground again. With regard to the additions and omissions, it is obvious that additions may be an improvement, and that omissions may be an improvement; but the mere fact that there is an addition, or the mere fact that there is an omission, does not enable you to take the substance of the plaintiff's patnet. The question is not whether the addition is material, or whether the omission is material, but whether what has been taken is the substance and essence of the invention. That seems to me to be the true test, as propounded by the house of lords in Clark v. Adie, 2 App. Cas. 315, 320.' Lord Justice FRY said, (page 766:) 'The pith and substance of the plaintiff's invention is, in my judgment, putting coals upon a fire by an intermittent radial action, an invention which, it may be remarked, reproduces with great exactitude the action of the human arm in placing coals upon a fire.' Also, (page 768:) 'In the present case we have these broad features of likeness: that in both machines the motion is a radial motion, in both machines it is an intermittent motion, in both machines it is of course produced by means of a radius, in both machines that radius is moved in one direction by tappets, and the same radius is moved in the opposite direction by a spring. All those broad features of the machines are in common; but there is this difference: that in the plaintiff's machine a shaft is impelled by the tappets and by the spring, whereas in the defendant's machine the radius itself is impelled by the tappets and the spring. It follows that the radius in the plaintiff's is attached to the shaft, whereas the radius in the defendant's works on a pin. That is the broad distinction between them. The result, however, appears to me to be substantially the same; by substituting the pin for the shaft as the centre on which the radius acts, and by impelling the radius itself instead of impelling the shaft fixed to the radius, you have produced in substance precisely the same radial action by the same means. You drive your radius in one direction by tappets, and you drive it in the other direction by the spring, and you produce the same result, namely, the feeding of coal by a radial motion made intermittent in one direction by the operation of the tappets, and in the other direction by the spring. I think, therefore, that we have a new combination for a new object, and that the gist of that combination has been taken by the defendant, and that, consequently, there is an infringement.' Applying these views to the case in hand, Moreley having been the first inventor of an automatic button-sewing machine, by uniting in one organization mechanism for feeding buttons from a mass, and delivering them one by one to sewing mechanism and to the fabric to which they are to be secured, and sewing mechanism for passing a thread through the eye of the button, and securing it to the fabric, and feeding mechanism for moving the fabric the required distances to space the buttons, another machine is an infringement, in which such three sets of mechanism are combined, provided each mechanism, individually considered, is a proper equivalent for the corresponding mechanism in the Morley patent; and it makes no difference that, in the infringing machine, the button-feeding mechanism is more simple, and the sewing mechanism and the mechanism for feeding the fabric are different in mechanical construction, so long as they perform each the same function as the corresponding mechanism in the Morley machine, in substantially the same way, and are combined to produce the same result. The view taken on the part of the defendant in regard to the question of infringement is that, inasmuch as the Lancaster machine uses different devices in its mechanisms which correspond to those referred to in the first, second, eighth, and thirteenth claims of the patent, those claims are to be limited to the special devices described in the patent, which make up such combinations, although both machines contain the same main group of instrumentalities which, when combined, make up the machine. But, in a pioneer patent, such as that of Morley, with the four claims in question such as they are, the special devices set forth by Morley are not necessary constituents of the claims. The main operative features of both machines are the same. In each there is a receptacle for shank-buttons in a mass; in each the mass of buttons passes in order into a conveyer-way; and in each the buttons conveyed to the sewing mechanism are presented successively with their shanks in a horizontal position, so as to allow of the passage of the needle through the eye. In the Morley machine, the buttons are carried along the raceway with their shanks down ward, and are turned over by proper devices, so that the needle can enter the eye. In the Lancaster machine, the buttons travel along the raceway with their shanks upward, and the twisted shape of the raceway causes the buttons to be presented properly in succession to the meedle. The only difference is that in the Morley machine there is an active operating device for turning the buttons, in the shape of a button-wheel, which receives them, and shuts off the column, and takes one at a time out of the raceway; while in the Lancaster machine there is a passive device for accomplishing the same result of turning the buttons, and there is no button-wheel, but there is a spring gate at the end of the raceway, which shuts off the column and, with the addition of other devices, allows one button at a time to be withdrawn from the raceway. But in the Morley patent a modification is described, whereby the button-wheel is dispensed with, and a spring gate, as in the Lancaster machine, is employed, and an active device is used to open the spring gate, and discharge the button; while in the Lancaster machine an active instrumentality is used to effect the same result, in combination with the sidewise movement of the raceway, and in connection with the fact that the needle enters the eye of the button and passes a thread through it. As to the mechanism for feeding the fabric, it is substantially the same in the two machines, for in each the needle operates to feed the fabric, while inserted in it, and it makes no difference that in the Morley machine the two needles swing like an inverted pendulum, while in the Lancaster machine the single needle swings in a straight line. The principal difference relied on by the defendant is in regard to the sewing or stitching mechanism, based upon the difference in the kind of stitch used in the two machines for fastening the button to the fabric. The two stitches are, indeed, different, specifically considered. Morley uses the chain stitch. In the Lancaster machine, the stitch is made by looping the thread upon itself, and putting the bight of the loop around the shank of the button, so as to prevent the loop from pulling out, as it would otherwise do. The Morley patent, however, is not for any particular kind of stitch, or for any particular kind of mechanism for making such stitch. When the form of the stitch is changed, the instrumentalities for making it must change. Morley says, in his specification, that different means for making a stitch may be employed, as well as other feed mechanisms. The contention of the defendant in regard to the sewing mechanism rests upon the proposition that the convolution or concatenation of thread which makes up the stitch in the Lancaster machine is different from that which is found in the Morley machine. In each machine, however, the buttons are spaced at the proper distances apart by the feeding mechanism which moves the fabric along, and the feeding device is moved alternately different distances, to alternate short stitches with long stitches between the buttons. In each machine the button is taken possession of by the sewing mechanism, and the needle in each enters the eye of the button. In the Lancaster machine, however, the thread is so looped as to embrace also the shank of the button; and thus, if the button were not present in the Lancaster machine, the lockstitch would not be formed, but merely a succession of loops, which could be pulled out of the fabric. But this convolution or concatenation of the thread to form the fastening of the stitch, and the particular device which forms such convolution or concatenation, are not made, by the Morley patent, elements which enter into the claims in question. Those claims are not for a result or effect, irrespective of the means by which the effect is accomplished. It is open to a subsequent inventor to accomplish the same result, if he can, by substantially different means. The effect of the rule before laid down is merely to require that, in determining whether the means employed in the Lancaster machine are substantially the same means as those employed in the Morley machine, the Morley patent is to receive a liberal construction, in view of the fact that he was a pioneer in the construction of an automatic button-sewing machine, and that his patent, especially in view of the character and terms of the four claims in question, is not to be limited to the particular devices or instrumentalities described by him, used in the three main elements of his machine, which, combined together, make it up. This is the principle applied by this court in Valve Co. v. Valve Co., 113 U. S. 157, 5 Sup. Ct. Rep. 513. In all three of the main mechanisms used in the Lancaster machine the means employed in it are substantially equivalents of those employed in the Morley machine. There is in each a hopper, containing the mass of buttons, and an inclined conveyerway leading from the hopper to the sewing mechanism. The only question in regard to the button-feeding mechanism is, whether the means employed in the Lancaster machine for turning the buttons so that the eyes will come into the path of the needle, are within the means employed for the same purpose in the Morley machine. In the Morley machine there is a flexible, corrugated strip of metal, which is oscillated to and fro, and operates to roll the buttons over, so that their shanks will occupy a groove at the bottom of the trough. In the Lancaster machine, the reciprocating brush which sweeps over the bottom of the hopper in which the buttons lie in a mass, operates in an equivalent way with the corrugated strip of the Morley machine, and causes the shanks, which stand upward, of the buttons which have been rolled over by its action, to enter slits in a metal plate, which converge in the single conveyer-way. The only difference is that in the Morley machine the shanks are caused to lie in one direction at one time in their path, and in the Lancaster machine the same result is accomplished by equivalent devices at another time. As to the instrumentalities employed in the two machines for bringing the buttons one by one so that their eyes will stand in a horizontal position, ready to receive the needle, the buttons in the Morley machine pass down the conveyer-way with their eyes pointing down ward, and occupying the groove, and from the conveyer-way they enter one by one into a button-wheel, which, by revolving, turns them 180 deg., and they are then received into a carrier which further turns them 90 deg., so as to get the eye into a horizontal plane. In the Lancaster machine, it is not necessary to turn the buttons more than 90 deg., because they have been so rolled over by the brush in the hopper that their eyes point upward and enter the slits, and the conveyer-way is twisted and so turns the button that its eye will occupy a horizontal plane, ready to receive the needle. Then the needle, entering the eye of the button, pulls the button out of the conveyer, and the latter moves out of the way, leaving the button in the possession of the sewing mechanism. These instrumentalities are the equivalents of each other, the differences being merely formal, active instrumentalities being employed in one case to turn the buttons, and in the other that end being accomplished by the twisting of the conveyer-way. To employ a curved path to change the plane occupied by a body passing along that path was well known in mechanics, and is a device shown in the Morley patent for turning the buttons from a nearly vertical position to a horizontal position, by a corresponding variation in the inclination of the conveyer-way. The only difference in the particular devices in the two machines in this respect results from the fact that in the Morley machine the buttons pass from the hopper with their shanks downward, while in the Lancaster machine they pass with their shanks upward. From this it results that, while the means employed in the two machines are substantially the same to effect the same result, active agents can be used in the one case, while passive agents are used in the other, to effect the same turning of the button. Indeed, in the modified form of construction suggested in the Morley specification, there is a spring gate for holding the buttons up, while in the Lancaster machine there is a similar spring; the only difference being that in the Morley machine the spring gate is opened by a special device, while in the Lancaster machine the button itself opens the spring when the button-holding contrivance moves out of the way. In that modification of the Morley arrangement, as the specification states, the button-wheel and the plunger and dispensed with, and it is not necessary to turn the button 180 deg. on a vertical axis. So, in this respect, the only difference between the two machines is that in the Morley machine the spring gate is opened by an active device, while in the Lancaster machine the conveyer-way is moved sidewise by an active device, leaving the button behind, which opens the spring gate because the needle has entered the eye of the button. In regard to the sewing mechanism in the two machines, a sewing-needle, with thread, is employed in each to fasten the buttons to the fabric. In each the thread is continuous, and follows the fabric as that is moved along by the mechanism which feeds it. The Morley machine employs the common stitch. In the Lancaster machine there is a peculiar stitch, in which a loop is drawn around the shank of the button, and thus the stitch is locked against being drawn out; but, notwithstanding the new convolution or concatenation of thread used in the Lancaster machine to secure the shank of the button to the fabric, the sewing mechanism of that machine is a substantial equivalent for the corresponding mechanism of the Morley patent. The invention of Morley in that respect did not consist in the peculiarity of the stitch, but in the combination of the needle, and the mechanism for operating it, with a button having a shank and an eye, the eye being held in a horizontal plane in the path of the needle, so that the thread carried by the needle could secure the button to the fabric. It is immaterial, in so securing the button, whether or not a loop is passed over the head of the button. The defendant's device and arrangement may be an improvement, and the subject of a patent, but nevertheless the use of it involves the plaintiff's invention. It may be true that the defendant's peculiar form of stitch was unknown before; and it may also be true that his arrangement for carrying the buttons with their eyes upward, and turning the eyes into a horizontal plane by the twisting of the conveyer-way, was not before known. Of course, they were not before known in a machine for automatically sewing buttons to a fabric, because Morley's machine was the first to do that. But still the defendant employs for the above purposes known devices, which, in mechanics, were recognized as proper substitutes for the devices used by Morley to effect the same results. Thus, in the Lancaster machine, the brush for rolling over the buttons is the obvious equivalent of the corrugated plate in the Morley machine. The mode of operation used in the Lancaster machine for rolling over the buttons so that their shanks shall point in a particular direction before entering the main conveyer-way is the same mode of operation found in the Morley machine, where the corrugated plate rolls the buttons over during their passage to the grooved conveyer-way, so that their shanks shall all point in the same direction. In the Lancaster machine the action resulting from the twisted way is a mechanical equivalent for the button-wheel, the punch, and the carrier used in the Morley machine to turn the eye into the proper plane for the needle to enter it; and the specific difference in the devices in this respect becomes less when the modification described in the Morley patent is used, so that in each of the two machines the button is turned only 90 deg. on a horizontal axis, and in each of them a spring gate is employed, opened in the one case by an active device, while in the other case an active device moves the conveyer away from the particular button which is being held by the needle. In this sense the mechanical devices used by the defendant are known substitutes or equivalents for those employed in the Morley machine to effect the same result, and this is the proper meaning of the term 'known equivalent,' in reference to a pioneer machine such as that of Morley; otherwise, a difference in the particular devices used to accomplish a particular result in such a machine would always enable a defendant to escape the charge of infringement, provided such devices were new with the defendant in such a machine, because, as no machine for accomplishing the result existed before that of the plaintiff, the particular device alleged to avoid infringement could not have existed or been known in such a machine prior to the plaintiff's invention. It results from these views that the decree of the circuit court must be reversed, and the case be remanded to that court, with a direction to enter a decree in favor of the plaitniff, sustaining the validity of claims 1, 2, 8, and 13 of the plaintiff's patent, and adjudging that those claims have been infringed by the defendant, and ordering a reference to a master to take an account of profits and damages in respect to such infringement, and awarding to the plaintiffs a perpetual injunction in respect to the four claims above mentioned, and to take such further proceedings as shall be according to law, and not inconsistent with this opinion.
129.US.52	The plaintiff in error was convicted of murder in a state court in Kansas. The Supreme Court of that State affirmed the judgment. On a writ of error from this court, it was assigned for error that the jurors were not sworn according to the form of oath prescribed by the statute of Kansas, and that, therefore, the jury was not a legally constituted tribunal, and so the defendant would be deprived of his life without due process of law and be denied the equal protection of the law. The statute did not give in words the form of the oath, but required that the jury should be sworn "to well and truly try the matters submitted to them in the case in hearing, and a true verdict give, according to the law and the evidence." The record did not state the form of the oath administered, but the journal entry stated that the jurors were "duly" sworn "well and truly to try the issue joined herein," and the bill of exceptions stated that the jury was sworn "to well and truly try the issues joined herein." The verdict also recited that the jury was " duly sworn" in the action. The record did not show that at the trial before the jury, any title, right, privilege, or immunity under the Constitution of the United States was specially set up or claimed. No objection was taken to the form of the oath at the trial, nor at the making of motions for a new trial and for an arrest of judgment before the trial court. The point was first suggested in the Supreme Court of the State. Held, (1.) The recitals in the record, as to the swearing of the jury, were not to be regarded as an attempt to set out the oath actually administered, but rather as a statement of the fact that the jury had been sworn and acted under oath; (2.) The objection could not be considered, because it was not taken at the trial. The question whether the evidence in the case was sufficent to justify the verdict, and the question whether the constitution of Kansas was complied with or not in certain proceedings on the trial, were not Federal questions which this court could review. The writ of error was dismissed for want of jurisdiction.	This is a writ of error to the supreme court of the state of Kansas. William Baldwin was proceeded against in the district court of the Second judicial district of Kansas, sitting in and for Atchison county, by an information charging him with the crime of murder. On a trial before a jury, he was found guilty. A motion for a new trial was denied; and the judgment of the court was rendered that he be confined at hard labor in the penitentiary of the state for one year from January 11, 1886, and until the governor of the state should by order direct his execution, at which time, as specified in such order, not less than one year from that date, he should be hung. He removed the case by appeal to the supreme court of the state, and it affirmed the judgment in December, 1886. An application for a rehearing was denied in July, 1887. The case is brought here by him. The decision of the supreme court of Kansas is reported as State v. Baldwin, 36 Kan. 1, 12 Pac. Rep. 318. The errors assigned here are (1) that the jurors were not sworn according to the form of oath prescribed by the statute of Kansas, and that therefore the jury was not a legally constituted tribunal, and so the defendant will, under the judgment of the court, be deprived of his life without due process of law, and be denied the equal protection of the law; (2) that the evidence on which the judgment was founded was so inadequate to show that the defendant was guilty of the crime of murder that the judgment amounts to a denial to the defendant of the equal protection of the law. As to the question of the oath administered to the jurors, the journal entry at the trial states that, issue being joined upon a plea of not guilty, there came a jury of 12 good and lawful men, whose names are given, 'having the qualifications of jurors, who, being duly elected, tried, and sworn well and truly to try the issue joined herein,' the trial proceeded. The bill of exceptions states that 'a jury was impaneled and sworn to well and truly try the issues joined herein.' The statute of the state of Kansas provides (Comp. Laws Kan. c. 82, art. 11, § 208; Id. c. 80, art. 15, § 274) that 'the jury shall be sworn to well and truly try the matters submitted to them in the case in hearing, and a true verdict give, according to the law and the evidence.' The statute does not give in words the form of the oath. It is contended that the record affirmatively shows that the oath required by the statute of Kansas was not administered to the jurors, but that they were only sworn 'well and truly to try the issue joined herein,' or 'to well and truly try the issues joined herein.' The record does not purport to give ipsissimis verbis the form of the oath administered to the jurors. The statement of the oath is entirely consistent with the fact that the oath required by the statute of Kansas was administered, especially in view of the statement in the journal entry that the jurors were 'duly' sworn. On this subject, the supreme court of Kansas says correctly in its opinion: 'It is highly important and necessary that the oath should be administered with due solemnity, in the presence of the prisoner, and before the court, substantially in the manner prescribed by law. It may also be conceded that the record should show that the jury were sworn, and, when the record does purport to set out in full the form of the oath upon which the verdict is based, it must be in substantial compliance with law; otherwise, the conviction cannot stand. The assumption by counsel that the oath as actually administered is set out in full in the record, it seems to us, is unwarranted. What is stated in the record is but a recital by the clerk of the fact that the jury were sworn. The swearing was, of course, done orally, in open court; and it is no part of the duty of the clerk to place on the record the exact formulary of words in which the oath was couched. He has performed his duty in that respect when he enters the fact that the jury were duly sworn, and when that is done the presumption will be that the oath was correctly administered. The method of examining the jurors as to their qualifications, or whether the oath was taken by them while standing with uplifted hands, according to the universal practice in the state, or otherwise, is not stated. In making mention of the impaneling and swearing of the jury, there is no description of the parties between whom the jury are to decide; nor, indeed, are there any of the formal parts of an oath stated. The statement made is only a recital of a past occurrence; and it is manifest that there was no intention or attempt of the clerk to give a detailed account of the manner of impaneling the jury, or to set out the oath in hoec verba. It may be observed that in the form of the verdict returned, and which was prepared and presented to the jury by the trial judge, it was stated that the jury were duly impaneled and sworn.' The form of the verdict thus referred to was in these words: 'We, the jury, duly impaneled, charged, and sworn in the above-entitled action, do, on our oath, find the defendant, William Baldwin, guilty of murder in the first degree, as charged in the first count of information.' The supreme court of Kansas held that the recitals in the record relative to the swearing of the jury were not to be regarded as an attempt to set out the oath actually administered, but rather as a statement of the fact that the jury had been sworn, and acted under oath. We concur in this view. That court went on to say: 'A still more conclusive answer on this point is that no objection was made to the form of the oath when it was administered, or at any other time prior to its presentation in this court. If there was any irregularity in this respect, it should, and probably would, have been objected to at the time it occurred. It is quite unlikely that there was any departure from the form of the oath so well understood, and which is in universal use in all of the courts of the state; but, if the form of the oath was defective, the attention of the court should have been called to it at the time the oath was taken, so that it might have been corrected. A party cannot sit silently by and take the chances of acquittal, and subsequently, when convicted, make objections to an irregularity in the form of the oath. Not only must the objection be made when the irregularity is committed, but the form in which the oath was taken, as well as the objection, should be incorporated into the bill of exceptions, in order that this court may see whether or not it is sufficient. This was not done.' This statement of the condition of the record shows that no federal question is presented in regard to the oath administered to the jurors of which this court can take jurisdiction. Section 709 of the Revised Statutes provides that a final judgment in any suit in the highest court of a state, in which a decision in the suit could be had, where any title, right, privilege, or immunity is claimed under the constitution, and the decision is against the title, right, privilege, or immunity'specially set up or claimed' by either party under such constitution, may be re-examined, and reversed or affirmed, in the supreme court, upon a writ of error. In the present case the record does not show that at the trial before the jury any title, right, privilege, or immunity under the constitution of the United States was specially set up or claimed. No objection was taken to the form of the oath at the trial, nor at the making of the motion for a new trial before the trial court, nor at the making of the motion for arrest of judgment in that court. The point was first suggested in the supreme court of the state. That court, as it appears, refused to consider the objection, on the ground that it was not taken at the trial. For that reason we also cannot consider it. In Spies v. Illinois, 123 U. S. 131, 181, 8 Sup. Ct. Rep. 21, 22, this court said in regard to a question of this kind: 'As the supreme court of the state was reviewing the decision of the trial court, it must appear that the claim was made in that court, because the supreme court was only authorized to review the judgment for errors committed there, and we can do no more.' Again: 'If the right was not set up or claimed in the proper court below, the judgment of the highest court of the state in the action is conclusive, so far as the right of review here is concerned.' The question whether the evidence in the case was sufficient to justify the verdict of the jury, and the question whether the constitution of the state of Kansas was complied with or not in the proceedings on the trial which are challenged, are not federal questions which this court can review. The writ of error is dismissed for want of jurisdiction.
129.US.202	Tnder Rev Stat. § 4899, a specific patentable machine, constructed with the knowledge and consent of the inventor, before his application for a patent. is set free from the monopoly of the patent in the hands of every one; and therefore, if constructed with the inventor's knowledge and consent, before his application for a patent, by a partnership of which he is a member, may be used by his copartners after the dissolution of the partnership, although the agreement of dissolution provides that nothing therein contained shall operate as an assent to such use, or shall lessen or impair any rights which they may have to such use.	The decision of this case turns upon section 4899 of the Revised Statutes, by which it is enacted that 'every person who purchases of the inventor or discoverer, or with his knowledge and consent constructs any newly invented or discovered machine, or other patentable article, prior to the application by the inventor or discoverer for a patent, or who sells or uses one so constructed, shall have the right to use, and vend to others to be used, the specific thing so made or purchased, without liability therefor.' This section clearly defines four classes of persons who shall have the right to use, and to vend to others to be used, a specific patentable machine: First, every person 'who purchases of the inventor' the machine before his application for a patent; second, every person who, 'with his knowledge and consent, constructs' the machine before the application; third, every person 'who sells' a machine 'so constructed,' that is to say, which has been constructed with the knowledge and consent of the inventor by another person; fourth, every person who 'uses one so constructed,' that is to say, constructed with the inventor's knowledge and consent by another person. In order to entitle a person of any of these four classes to use and vend the machine, under this section, the machine must originally have been either purchased from the inventor, or else constructed with his knowledge and consent, before his application for a patent; and it may well be that a fraudulent or surreptitious purchase or construction is insufficient. Kendall v. Winsor, 21 How. 322; Andrews v. Hovey, 124 U. S. 694, 708, 8 Sup. Ct. Rep. 676. But after a machine has been constructed by any person, with the inventor's knowledge and consent, before the application for a patent, every other person who either sells or uses that machine is within the protection of the section, and needs no new consent or permission of the inventor. If the first two clauses of the section, taken by themselves, leave the matter in any doubt, the succeeding clause, including every person 'who sells or uses one so constructed,' makes it perfectly clear that the implied license conferred by the section sets the specific machine free from the monopoly of the patent in the hands of any person, just as if that person were the lawful assignee of one holding the machine under a purchase or an express and unrestricted license from the inventor. McClurg v. Kingsland, 1 How 202; Bloomer v. McQuewan, 14 How. 539, 549; Bloomer v. Millinger, 1 Wall. 340; Adams v. Burke, 17 Wall. 453; Birdsell v. Shaliol, 112 U. S. 485, 487, 5 Sup. Ct. Rep. 244. In the case at bar, the machines of the plaintiff's invention were not purchased from him by the defendants; but they were constructed with his knowledge and consent, by a partnership of which he and the defendants were the members. It was strongly argued for the defendants that a sale or a license from the inventor to two or more partners or tenants in common confers upon each a right to use and to sell the subject of the sale or license, and that the defendants therefore come within the second class of persons defined in the statute. But it is unnecessary to determine whether that is so or not, because, if it is not, the defendants clearly come within the fourth class, being persons who use machines which have been constructed with the knowledge and consent of the inventor before his application for a patent. The peculiar provisions of the agreement by which the partnership between the plaintiff and the defendants was dissolved did not, in terms or in legal effect, enlarge or diminish the rights of either party, independently of that agreement, in the machines in question. Decree affirmed.
132.US.27	When it appears from the record in this court in a cause commenced in a state court, and removed to a Circuit Court of the United States on the ground of diverse citizenship, and proceeded in to judgment there, that the citizenship of the parties at the time of the commencement of the action, as well as at the time of filing the petition for removal, was not sufficiently shown, and that therefore the jurisdiction of the state court was never divested, the defect cannot be cured by amendment, and the judgment of the Circuit Court will be reversed at the cost of the plaintiff in error, and the cause remitted to that court with directions to remand it to the state court.	The original action and that of intervention and third opposition therein were brought in the civil district court for the parish of Orleans, La., and petitions filed for their removal into the circuit court of the United States for the eastern district of Louisiana upon the ground of the diverse citizenship of the parties. The cause was thereupon docketed and tried in the circuit court, by the judge thereof, on stipulation according to the statute, and, upon his findings, judgment was rendered, and writs of error were prosecuted to this court. It appears from the record that the citizenship of the parties at the commencement of the actions, as well as at the time the petitions for removal were filed, was not sufficiently shown, and that therefore the jurisdiction of the state court was never divested. Stevens v. Nichols, 130 U. S. 230, 9 Sup. Ct. Rep. 518. This being so, the defect cannot be cured by amendment. Crehore v. Railroad Co., 131 U. S. 240, 9 Sup. Ct. Rep. 692. We are compelled to reverse the judgment, at the costs, however, of the respective plaintiffs in error, and remit the cause to the circuit court, with directions to remand to the state court.
130.US.674	Lake County v. Rollins, ante 662, affirmed and applied to the bonds in controversy in this action. When the constitution of a State imposes upon the municipal corporations within it a limitation of their power to incur debts, it is not within the power of the legislature of the State to dispense with that limitation, either directly or indirectly. The constitution of Colorado imposed a limit upon the power of municipal corporations to contract debts. The legislature authorized county commissioners (a vote of the tax-payers first being had) to issue bonds of the county, not to exceed the amount of the floating debt, that amount to be ascertained by the commissioners, no reference being made in the statute to the constitutional limitation. The commissioners of Lake County settled the amount of the floating debt of the county at $500,000, which was in excess of the constitutional limitation, and issued bonds to that amount, in which reference was made to the statute, and in which it was "certified that all the provisions and requirements of said act have been fully complied with by the proper officers in the issuing of this bond." Held, that the county was not estopped to deny that the bond was issued in violation of the provisions of the Constitution.	This action was instituted in the circuit court of the United States for the district of Colorado. It is a suit against the county of Lake, in that state, and is based on 198 coupons, aggregating the sum of $7,280, and being for interest on certain bonds issued by the county on the 2d of January, 1882. The case was tried in the court below on an agreed statement of facts, which is in the bill of exceptions. From that agreement it appears that the bonds from which the coupons sued on were detached were executed in exchange for divers warrants of the county, to the amount of $500,000; that they were executed in compliance with an act of the general assembly of Colorado entitled 'An act to enable the several counties of the state to fund their floating INDEBTEDNESS;' THAT THE INDEBTEDNESS OF The county on the 6th day of september, 1881, the day the first notice was published under the act, as evidenced by county warrants, was $500,000, and the assessed valuation of the property of said county on said day was $16,423,403, afterwards rebated, in 1882, to $5,017,000, in accordance with a decision of the supreme court; and that such was the indebtedness and valuation on the day the bonds and coupons were issued. There is also in the record an agreement between the parties that if section 6 of article 11 of the constitution of the state of Colorado be construed to be a limitation upon the power of the defendant county to contract any and all indebtedness, including all such as that sued upon in this action, then it is admitted that the claimed indebtedness sued on herein was incurred after the limitation prescribed by said constitution had been reached and exceeded by the said defendant, the county of Lake; and in the event of such a construction by the circuit court, or the supreme court of the United States, then, and in that case, and for the purposes of the action, it is also admitted that the defendant is entitled to judgment thereon, unless the defendant is estopped from making such defense by the recitals contained on the face of the bonds and coupons sued on in this action. In the case of Commissioners v. Rollins, ante, 651, we have set forth said section 6, and have decided that it does impose 'a limitation upon the power of the defendant county to contract any and all indebtedness.' That decision disposes of the first condition in the agreement recited above. It only remains to decide whether the county is estopped from making such defense by the recitals contained on the face of such bonds and coupons. The bonds and coupons are as follows: 'No. ___. $_____. United States of America, County of Lake, State of Colorado. Funding Bond. Series ___. The county of Lake, in the state of Colorado, acknowledges itself indebted, and promises to pay TO _____, OR BEARER, _____ dollars, lawful money of the united states, for value received, redeemable at the pleasure of the said county, after ten years, and absolutely due and payable twenty years from the date hereof, at the office of the treasurer of the said county, in the city of Leadville, or at the banking-house of Jesup, Paton & Co., in the city of New York, at the option of the holder, with interest thereon at the rate of eight per cent. per annum, payable semi-annually, on the first day of January and the first day of July in each year, at the office of the county treasurer aforesaid, or at the banking-house of Jesup, Paton & Co., in the city of New York, at the option of the holder, upon the presentation and surrender of the annexed coupons as they severally become due. This bond is one of 710 funding bonds, each of like date, comprised in three series, designated 'A,' 'B,' and 'C,' respectively,—series 'A' consisting of 450 bonds for the sum of one thousand dollars each, numbered from 1 to 450, both numbers inclusive; series 'B' consisting of 60 bonds for the sum of five hundred dollars each, numbered from 451 to 510, both numbers inclusive; and series 'C' consisting of 200 bonds for the sum of one hundred dollars each, numbered from 511 to 710, both numbers inclusive,—the whole amounting to five hundred thousand dollars, which the board of county commissioners of said Lake county have issued under and by virtue of and in full compliance with an act of the general assembly of the state of Colorado entitled 'An act to enable the several counties of the state of fund their floating indebtedness,' approved February 21, 1881; and it is hereby certified that all the provisions and requirements of said act have been fully complied with by the proper officers in the issuing of this bond. It is further certified that this issue of bonds has been authorized by a vote of a majority of the duly-qualified electors of said county of Lake, voting on the question at a general election duly held in said county on the 8th day of November, A. D. 1881. The faith and credit of the county of Lake are hereby pledged for the punctual payment of the principal and interest of this bond. In testimony whereof the board of county commissioners of the said county of Lake has caused this bond to be signed by its chairman, countersigned by the county treasurer, and attested by the county clerk, under the seal of the county, this second day of January, A. D. 1882. Attest: _____, County Clerk. _____, Chairman Board of County Commissioners. [County Seal.]' Section 1 of the act under which the bonds were issued is as follows: 'Section 1. It shall be the duty of the county commissioners of any county having a floating indebtedness exceeding ten thousand dollars, upon the petition of fifty of the electors of said counties [county] who shall have paid taxes upon property assessed to them in said county in the preceding year, to publish for the period of thirty days, in a newspaper within said county, a notice requesting the holders of the warrants of such county to submit, in writing, to the board of county commissioners, within thirty days from the date of the first publication of such notice, a statement of the amount of the warrants of such county which they will exchange, at par and accrued interest, for the bonds of such county, to be issued under the provisions of this act, taking such bonds at par. It shall be the duty of such board of county commissioners, at the next general election occurring after the expiration of thirty days from the date of the first publication of the notice aforementioned, upon the petition of fifty of the electors of such county, who shall have paid taxes upon property assessed to them in said county in the preceding year, to submit to the vote of the qualified electors of such county, who shall have paid taxes on property assessed to them in said county in the preceding year, the question whether the board of county commissioners shall issue bonds of such county, under the provisions of this act, in exchange, at par, for the warrants of such county, issued prior to the date of the first publication of the aforesaid notice; or they may submit such question at a special election, which they are hereby empowered to call for that purpose, at any time after the expiration of thirty days from the date of the first publication of the notice aforementioned, on the petition of fifty qualified electors as aforesaid; and they shall publish, for the period of at least thirty days immediately preceding such general or special election, in some newspaper published within such county, a notice that such question will be submitted to the duly-qualified electors as aforesaid at such election. The county treasurer of such county shall make out and cause to be delivered to the judges of election, in each election precinct in the county, prior to the said election, a certified list of the tax-payers in such county who shall have paid taxes upon property assessed to them in such county in the preceding year; and no person shall vote upon the question of the funding of the county indebtedness unless his name shall appear upon such list, nor unless he shall have paid all county taxes assessed against him in such county in the preceding year. If a majority of the votes lawfully cast upon the question of such funding of the county indebtedness shall be for the funding of such indebtedness, the board of county commissioners may issue to any person or corporation holding any county warrant or warrants, issued prior to the date of the first publication of the aforementioned notice, coupon bonds of such county in exchange therefor at par. No bonds shall be issued of less denomination than one hundred dollars, and if issued for a greater amount, then for some multiple of that sum, and the rate of interest shall not exceed eight per cent. per annum. The interest to be paid semi-annually, at the office of the county treasurer, or in the city of New York, at the option of the holders thereof. Such bonds to be payable at the pleasure of the county, after ten years from the date of their issuance, but absolutely due and payable twenty years after date of issue. The whole amount of bonds issued under this act shall not exceed the sum of the county indebtedness at the date of the first publication of the aforementioned notice, and the amount shall be determined by the county commissioners, and a certificate made of the same, and made a part of the records of the county; and any bond issued in excess of said sum shall be null and void; and all bonds issued under the provisions of this act shall be registered in the office of the state auditor, to whom a fee of ten cents shall be paid for recording each bond.' Nothing is better settled than this rule: that the purchaser of bonds such as these is held to know the constitutional provisions and the statutory restrictions bearing on the question of the authority to issue them; also the recitals of the bonds he buys; while, on the other hand, if he act in good faith and pay value, he is entitled to the protection of such recitals of facts as the bonds may contain. In this case the constitution charges each purchaser with knowledge of the fact that, as to all counties whose assessed valuation equals $1,000,000, there is a maximum limit, beyond which those counties can incur no further indebtedness under any possible conditions, provided that, in calculating that limit, debts contracted before the adoption of the constitution are not to be counted. The statute, on the other hand, charges the purchaser with knowledge of the fact that the county commissioners were to issue bonds, at par, in exchange for such warrants of the county as were themselves issued prior to the date of the first publication of the notice provided for; that the only limitation on the issue of bonds in the statute was that the bonds should not exceed in amount the sum of the county indebtedness on the day of notice aforesaid; that, while the commissioners were empowered to determine the amount of such indebtedness, yet the statute does not refer that board, for the elements of its computation, to the constitution or to the standards prescribed by the constitution, but leaves it open to them, without departing from any direction of the statute, to adopt solely the basis of the county warrants. The recitals of the bonds were merely to the effect that the issue was 'under, and by virtue of, and in full compliance with,' the statute; 'that all the provisions and requirements of said act have been fully complied with by the proper officers in the issuing of this bond;' and that the issuing was 'authorized by a vote of a majority of the duly-qualified electors,' etc.,—no express reference being made to the constitution, nor any statement made that the constitutional requirements had been observed. There is therefore no estoppel as to the constitutional question, because there is no recital in regard to it. Carroll Co. v. Smith, 111 U. S. 556, 4 Sup. Ct. Rep. 539. It is true, it might be said, that inasmuch as the bonds recite that all the requirements of the statute had been fully complied with by the proper officers, and inasmuch as one of those requirements was that the officers should determine the amount of the county debt, the inference is fair and reasonable that the statute meant only that they should count what was a just and actual debt, not claims that were void, and therefore no debt; and that the recital made was in effect a statement that the whole matter had been examined by the board, and that they had issued bonds for only such warrants as were found to be issued in conformity to the law, the whole law,—fundamental as well as statute. Waiving the question as to whether such a conclusion, persuasive as it might be in other aspects of a cause, is not too remote and indirect for the basis of an estoppel, the avowed object of which is to exclude from consideration the truth, still how could the case be any better for the defendant in error? Had the bond expressly stated that the board canvassed the debt, and found the same to be binding and valid under the law and the constitution, and that the same was $500,000, the recital would not be an estoppel. It must be remembered that these bonds show on their face an issue of $500,000. In the case of Dixon Co. v. Field, 111 U. S. 83, 92, 4 Sup. Ct. Rep. 319, this court said: 'Recurring, then, to a consideration of the recitals in the bonds, we as sume, for the purposes of this argument, that they are in legal effect equivalent to a representation or warranty or certificate on the part of the county officers that everything necessary by law to be done has been done, and every fact necessary by law to have existed did exist, to make the bonds lawful and binding. Of course, this does not extend to or cover matters of law. All parties are equally bound to know the law; and a certificate reciting the actual facts, and that thereby the bonds were conformable to the law, when, judicially speaking, they are not, will not make them so, nor can it work an estoppel upon the county to claim the protection of the law. Otherwise it would always be in the power of a municipal body, to which power was denied, to usurp the forbidden authority, by declaring that its assumption was within the law. This would be the clear exercise of legislative power, and would suppose such corporate bodies to be superior to the law itself.' Now, while it is true that the bonds show on their face an issue of $500,000, yet it is also true that neither the constitution nor the statute nor the bond shows the amount of the valuation of the county; and it therefore might be said that for this reason, and notwithstanding the purchaser's knowledge of the limit, and his knowledge that $500,000 of debt was incurred, yet he might not have known that the limit had been exceeded, being ignorant of the other term in the calculation, that of the amount of the assessed values, and that the recital of conformity, misleading him, would operate as an estoppel. This question is settled in the case of Dixon Co. v. Field, supra. The court there say, (page 93, 4 Sup. Ct. Rep. 320:) 'If the fact necessary to the existence of the authority was by law to be ascertained, not offically by the officers charged with the execution of the power, but by reference to some express and definite record of a public character, then the true meaning of the law would be that the authority to act at all depended upon the actual objective existence of the requisite fact, as shown by the record, and not upon its ascertainment and determination by any one; and the consequence would necessarily follow, that all persons claiming under the exercise of such a power might be put to proof of the fact made a condition of its lawfulness, notwithstanding any recitals in the instrument.' 'The amount of the bonds issued was known. It is stated in the recital itself. It was $87,000. The holder of each bond was apprised of that fact. The amount of the assessed value of the taxable property in the county is not stated; but, ex vi termini, it was ascertainable in one way only, and that was by reference to the assessment itself, a public record equally accessible to all intending purchasers of bonds, as well as to the county officers. This being known, the ratio between the two amounts was fixed by an arithmetical calculation. No recital involving the amount of the assessed taxable valuation of the property to be taxed for the payment of the bonds can take the place of the assessment itself, for it is the amount as fixed by reference to that record that is made by the constitution the standard for measuring the limit of the municipal power. Nothing in the way of inquiry, ascertainment, or determination as to that fact is submitted to the county officers. They are bound, it is true, to learn from the assessment what the limit upon their authority is, as a necessary preliminary in the exercise of their functions and the performance of their duty; but the information is for themselves alone. All the world besides must have it from the same source, and for themselves. The fact, as it is recorded in the assessment itself, is extrinsic, and proves itself by inspection, and concludes all determinations that contradict it.' To the suggestion that the purchaser was not chargeable with knowledge of the fact that the maximum of 12 mills on the dollar had been exceeded—for the $500,000 of debt ascertained to be due on the day of notice, and for which bonds were issued, might have been partly or wholly created before the constitution was adopted, and therefore be excluded from the rule by the very terms of the constitution itself—there are two decisive answers: First, the bill of exceptions shows that the debt was not so created, either in whole or in part; second, the defendant in error is not entitled to an estoppel, even if such an inference might have been drawn from the recital of conformity. The cases just cited show that the records are the only source of information. The question here is distinguishable from that in the cases relied on by counsel for defendant in error. In this case the standard of validity is created by the constitution. In that standard two factors are to be considered,—one the amount of assessed value, and the other the ratio between that assessed value and the debt proposed. These being exactions of the constitution itself, it is not within the power of a legislature to dispense with them, either directly or indirectly, by the creation of a ministerial commission whose finding shall be taken in lieu of the facts. In the case of Sherman Co. v. Simonds, 109 U. S. 735, 3 Sup. Ct. Rep. 502, and others like it, the question was one of estoppel, as against an exaction imposed by the legislature; and the holding was that the legislature, being the source of exaction, had created a board authorized to determine whether its exaction had been complied with, and that its finding was conclusive to a bona fide purchaser. So, also, in Oregon v. Jennings, 119 U. S. 74, 7 Sup. Ct. Rep. 124, the condition violated was not one imposed by the constitution, but one fixed by the subscription contract of the people. For these reasons, and under the stipulation above recited, the judgment of the court below is reversed, and the case is remanded to that court, with a direction to enter judgment for the defendant.
130.US.416	A bill of lading, fraudulently issued by the station agent of a railroad company without receiving the goods named in it for transportation, but in other respects according to the customary course of business, imposes no liability upon the company to an innocent holder who receives it without knowledge or notice of the fraud and for a valuable consideration: and this general rule is not affected in Texas by the statutes of that State.	The agreed statement of facts sets forth 'that, in point of fact, said bill of lading of November 6, 1883, was executed by said E. D. Easton fraudulently, and by collusion with said Lahnstein, and without receiving any cotton for transportation, such as is represented in said bill of lading, and without the expectation on the part of the said Easton of receiving any such cotton;' and it is further said that Easton and Lahnstein had fraudulently combined in another case, whereby Easton signed and delivered to Lahnstein a similar bill of lading for cotton 'which had not been received, and which the said Easton had no expectation of receiving;' and also 'that, except that the cotton was not received nor expected to be received by said agent when said bill of lading was by him executed as aforesaid, the transaction was, from first to last, customary.' In view of this language, the words 'for transportation, such as is represented in said bill of lading,' cannot be held to operate as a limitation. The inference to be drawn from the statement is that no cotton whatever was delivered for transportation to the agent at Sherman station. The question arises, then, whether the agent of a railroad company at one of its stations can bind the company by the execution of a bill of lading for goods not actually placed in his possession, and its delivery to a person frauduletly pretending, in collusion with such agent, that he had shipped such goods, in favor of a party without notice, with whom, in furtherance of the fraud, the pretended shipper negotiates a draft, with the false bill of lading attached. Bills of exchange and promissory notes are representatives of money, circulating in the commercial world as such, and it is essential, to enable them to perform their peculiar functions, that he who purchases them should not be bound to look beyond the instrument, and that his right to enforce them should not be defeated by anything short of bad faith on his part. But bills of lading answer a different purpose, and perform different functions. They are regarded as so much cotton, grain, iron, or other articles of merchandise, in that they are symbols of ownership of the goods they cover; and as no sale of goods lost or stolen, though to a bona fide purchaser for value, can divest the ownership of the person who lost them, or from whom they were stolen, so the sale of the symbol or mere representative of the goods can have no such effect, although it sometimes happens that the true owner, by negligence, has so put it into the power of another to occupy his position ostensibly as to estop him from asserting his right as against a purchaser, who has been misled to his hurt by reason of such negligence. Shaw v. Railroad Co., 101 U. S. 557, 563; Pollard v. Vinton, 105 U. S. 7, 8; Gurney v. Behrend, 3 El. & Bl. 633, 634. It is true that, while not negotiable as commercial paper is, bills of lading are commonly used as security for loans and advances; but it is only as evidence of ownership, special or general, of the property mentioned in them, and of the right to receive such property at the place of delivery. Such being the character of a bill of lading, can a recovery be had against a common carrier for goods never actually in its possession for transportation, because one of its agents, having authority to sign bills of lading, by collusion with another person, issues the document in the absence of any goods at all? It has been frequently held by this court that the master of a vessel has no authority to sign a bill of lading for goods not actually put on board the vessel, and, if he does so, his act does not bind the owner of the ship even in favor of an innocent purchaser. The Freeman, 18 How 182, 191; The Lady Franklin, 8 Wall. 325; Pollard v. Vinton, 105 U. S. 7. And this agrees with the rule laid down by the English courts. Lickbarrow v. Mason, 2 Term R. 67; Grant v. Norway, 10 C. B. 665; Cox v. Bruce, 18 Q. B. Div. 147. 'The receipt of the goods,' said Mr. Justice MILLER, in Pollard v. Vinton, supra, 'lies at the foundation of the contract to carry and deliver. If no goods are actually received, there can be no valid contract to carry or to deliver.' 'And the doctrine is applicable to transportation contracts made in that form by railway companies and other carriers by land, as well as carriers by sea,' as was said by Mr. Justice MATTHEWS in Railway Co. v. Knight, 122 U. S. 79, 87, 7 Sup. Ct. Rep. 1132, he adding also: 'If Potter [the agent] had never delivered to the plaintiff in error any cotton at all to make good the 525 bales called for by the bills of lading, it is clear that the plaintiff in error would not be liable for the deficiency. This is well established by the cases of The Freeman, 18 How. 182, and Pollard v. Vinton, 105 U. S. 7.' It is a familiar principle of law that where one of two innocent parties must suffer by the fraud of another, the loss should fall upon him who enabled such third person to commit the fraud; but nothing that the railroad company did or omitted to do can be properly said to have enabled Lahnstein to impose upon Fried-lander & Co. The company not only did not authorize Easton to sign fictitious bills of lading, but it did not assume authority itself to issue such documents, except upon the delivery of the merchandise. Easton was not the company's agent in the transaction, for there was nothing upon which the agency could act. Railroad companies are not dealers in bills of exchange, nor in bills of lading; they are carriers only, and held to rigid responsibility as such. Easton, disregarding the object for which he was employed, and not intending by his act to execute it, but wholly for a purpose of his own and of Lahnstein, became particeps criminis with the latter in the commission of the fraud upon Friedlander & Co., and it would be going too far to hold the company, under such circumstances, estopped from denying that it had clothed this agent with apparent authority to do an act so utterly outside the scope of his employment and of its own business. The defendant cannot be held on contract as a common carrier, in the absence of goods, shipment, and shipper; nor is the action maintainable on the ground of tort. 'The general rule,' said WILLES, J., in Barwick v. Bank, L. R. 2 Exch. 259,' is that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service, and for the master's benefit, though no express command or privity of the master be proved.' See, also, Limpus v. Omnibus Co., 1 Hurl. & C. 526. The fraud was in respect to a matter within the scope of Easton's employment or outside of it. It was not within it, for bills of lading could only be issued for merchandise delivered; and, being without it, the company, which derived and could derive no benefit from the unauthorized and fraudulent act, cannot be made responsible. Banking Co. v. Railway Co., 18 Q. B. Div. 714. The law can punish roguery, but cannot always protect a purchaser from loss; and so fraud perpetrated through the device of a false bill of lading may work injury to an innocent party, which cannot be redressed by a change of victim. Under the Texas statutes the trip or voyage commences from the time of the signing of the bill of lading issued upon the delivery of the goods, and thereunder the carrier cannot avoid his liability as such, even though the goods are not actually on their passage at the time of a loss, but these provisions do not affect the result here. We cannot distinguish the case in hand from those heretofore decided by this court, and in consonance with the conclusions therein announced this judgment must be affirmed.
129.US.233	The crop ends of Bessemer steel rails are liable to a duty of 45 per cent ad valorem, as "steel" under Schedule C of § 2502 of the Revised Statutes, as amended by § 6 of the act of March 3, 1883, c. 121, 22 Stat. 500, and are not liable to a duty of only 20 per cent ad valorem, as ",m etal unwrought," under the same schedule. Where, at the close of the plaintiff's evidence, on a trial before a 3ury, the defendant moves the court to direct a verdict for him, on the ground that the plaintiff has not shown sufficient facts to warrant a recovery, and the motion is denied, and the defendant excepts, the exception fails, if the defendant afterwards introduces evidence. Under the practice m New York, allegations in the complaint, that the plaintiff "duly" protested in writing against the exaction of duty, and "duly" appealed to the Secretary of the Treasury and that ninety days had not elapsed, at the commencement of the suit, since the decision of the secretary, if not denied by the answer are to be taken as true, and are sufficient to prevent the defendant from taking the ground, at the trial, that the protest was premature, or that the plaintiff must give proof of an appeal, or of a decision thereon, or of its date.	This is an action originally brought in the superior court of the city of New York, and removed by certiorari, by the defendant, into the circuit court of the United States for the Southern district of New York. It was brought by Charles L. Perkins against William H. Robertson, collector of the port of New York, to recover $1,460 as duties illegally exacted on an importation of Bessemer steel rail crop-ends, from England, in August, 1884. The defendant exacted duties on the articles at the rate of 45 per centum ad valorem, amounting to $2,628. The plaintiff claimed that the lawful rate of duty was only 20 per centum ad valorem, or $1,168. The complaint contained the allegation that the plaintiff 'duly made and filed due and timely protest in writing against the said erroneous and illegal assessment and exaction of the said duty;' that the plaintiff was compelled to pay the $1,460 in order to obtain possession of the merchandise; that he duly appealed to the secretary of the treasury from the decision of the defendant ascertaining and liquidating the duties; and that 90 days had not elapsed, at the commencement of the suit, since the decision of the secretary of the treasury on such appeal. The answer of the defendant did not deny the allegations of the complaint as to protest and appeal, and the decision of the secretary of the treasury. The jury found a verdict for the plaintiff. The parties consented in open court that the amount of the verdict might be adjusted at the custom-house, under the direction of the court. The amount was adjusted as of the date of the verdict, and for that amount, with interest and costs,—in all, $1,742.23,—judgment was rendered for the plaintiff. To review that judgment the defendant has brought a writ of error. At the close of the plaintiff's evidence the counsel for the defendant moved the court to direct a verdict for the defendant on the grounds, among others, (1) that the protest which was put in evidence by the plaintiff was served and filed before liquidation, and was therefore premature; (2) that no proof was offered or given that there was any appeal to the secretary of the treasury, or any decision on such appeal, and no proof of the date of such decision, to show that the suit was brought in time. The motion was denied, and the defendant excepted to the ruling. Under section 914 of the Revised Statutes of the United States the practice, pleadings, and forms and modes of proceeding in this case, in regard to the complaint and the answer, were required to conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state of New York. By section 481 of the New York Code of Civil Procedure it is required that the complaint shall contain 'a plain and concise statement of the facts constituting each cause of action.' Section 500 requires that the answer shall contain 'a general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.' By section 522, 'each material allegation of the complaint, not controverted by the answer,' 'must, for the purposes of the action, be taken as true.' The allegation of the complaint in this case is that the plaintiff 'duly made and filed due and timely protest in writing,' and 'duly appealed to the secretary of the treasury,' and 'that ninety days have not elapsed since the decision of the secretary of the treasury on the aforesaid appeal.' As none of these allegations were denied in the manner required by section 500 of the Code, they were, by section 522, to be taken as true, and no issue was joined upon any one of them. This is the ruling in regard to these provisions by the court of appeals of the state of New York. In Lorillard v. Clyde, 86 N. Y. 384, the complaint alleged that, in pursuance of a certain agreement, a corporation 'was duly organized under the laws of this state.' It was contended, on a demurrer to the complaint, that the agreement was illegal, because it provided that the parties thereto, consisting of five persons only, should form a corporation, whereas the statute contemplated that at least seven persons should unite in order to form a corporation. But the court held that the allegation that a corporation was 'duly organized under the laws of this state,' pursuant to the agreement, imported that the requisite number of persons united for that purpose; that it must be assumed that the corporation was regularly organized; and that it was unnecessary for the plaintiff to show in his complaint the precise steps taken to accomplish that result. The word 'duly' means 'in a proper way, or regularly, or according to law.' See, also, Tuttle v. People, 36 N. Y. 431, 436, and cases there cited; Fryatt v. Lindo, 3 Edw Ch. 239; People v. Walker, 23 Barb. 304; People v. Mayor, 28 Barb. 240; Burns v. People, 59 Barb. 531; Gibson v. People, 5 Hun, 542. The plaintiff claimed, by his protest and at the trial, that the articles in question were liable to a duty of only 20 per centum ad valorem, under the provision of Schedule C of section 2502 of the Revised Statutes, as amended by section 6 of the act of March 3, 1883, c. 121, (22 St. 501,) which imposes a duty of 20 per centum ad valorem on 'mineral substances in a crude state, and metals unwrought, not specially enumerated or provided for in this act.' The collector had imposed a duty of 45 per centum ad valorem on the articles, under the following provision of the same Schedule C, (22 St. 500:) 'Steel, not especially enumerated, or provided for in this act, forty-five per centum ad valorem: provided, that all metal produced from iron or its ores, which is cast and malleable, of whatever description or form, without regard to the percentage of carbon contained therein, whether produced by cementation, or converted, cast, or made from iron or its ores, by the crucible, Bessemer, pneumatic, Thomas-Gilchrist, basic, Siemens-Martin, or open-hearth process, or by the equivalent of either, or by the combination of two or more of the processes, or their equivalents, or by any fusion or other process which produces from iron or its ores a metal either granular or fibrous in structure, which is cast and malleable, excepting what is known as 'malleable iron castings,' shall be classed and denominated as steel.' At the close of the plaintiff's evidence, the defendant moved the court to direct a verdict for the defendant on the further ground that the plaintiff had not shown facts sufficient to entitle him to recover. The motion was denied by the court, and the defendant excepted to the ruling. But, as the defendant did not then rest his case, but afterwards proceeded to introduce evidence, the exception fails. Insurance Co., v. Crandal, 120 U. S. 527, 7 Sup. Ct. Rep. 685. The plaintiff introduced evidence for the purpose of showing that the article in question fell under the denomination of 'metal unwrought,' not specially enumerated or provided for in the act; and the defendant introduced evidence to show the contrary. It appeared by the evidence of the plaintiff that the crop-end of a Bessemer steel rail, such as the article in question, was the imperfect end of a rail, which was cut off to bring the remainder down to a solid rail of regular length; that the end thus cut off was of the same texture and fabric with the rail which remained after such end was cut off, and was made in the same manner; and that the crop-end so cut off was Bessemer steel. It also appeared that such ends, when imported, were sold as an article of merchandise in this country, and were sometimes remelted in furnaces; and that they were sometimes used, after importation, for manufacturing other articles, by reheating them, without their being remelted, and had a value as a manufactured article, other than for the purpose of remelting. At the close of the testimony on both sides the defendant moved the court to direct a verdict for him on the grounds that the plaintiff had not produced sufficient evidence to make a case; that there was no evidence that the imported articles were unwrought metal; and that they were steel, which was specially provided for in the statute. The motion was denied by the court, and the defendant excepted to the ruling. The court charged the jury that the only question was whether the article was wrought or unwrought metal; that the word 'wrought' meant wrought into something suitable for use, and not merely wrought in some manner, by being manufactured or treated; that, if the article was a mere excess of material, left after the making of steel rails, it was not wrought metal, within the sense of the statute; that, if it was something left over in excess of the material, the jury were to return a verdict for the plaintiff; but, if it was an article fit for use in itself, made at the same time with the making of the rail, they should return a verdict for the defendant. The defendant excepted to that part of the charge which stated that the only question for the jury was whether the article was wrought or unwrought metal; and also to that part which stated that, if the article was a mere excess of material in making steel rails, it was not wrought metal in the sense of the statute. We are of opinion that the court erred in its disposition of the case, and its charge to the jury. The motion to direct a verdict for the defendant on the ground that the article was not metal unwrought, not specially enumerated or provided for in the statute, but was steel, specially enumerated and provided for in the same statute, in a clause other than that regarding metals unwrought, ought to have been granted. The article fell within the definition of steel given in the statute. The testimony showed that it was metal produced from iron or its ores, by the Bessemer process, within the definition of the articles which the statute stated should 'be classed and denominated as steel.' It was none the less steel because it was an excess of material, as the result of making steel rails, cut off from the steel rail, and not suitable for use in itself, without being remelted or reheated. The charge of the court on this subject was subject to the exception and objection made to it. It results from these views that the judgment below must be reversed, and the case be remanded to the circuit court, with a direction to grnat a new trial.
130.US.341	When it does not appear, affirmatively, from the record that the Circuit Court had jurisdiction, the judgment below will be reversed and the cause remanded for further proceedings in accordance with law.	The act of 1875 declares that no circuit or district court shall have 'cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the lawmerchant, and bills of exchange.' 18 St. 470. It does not appear that the What Cheer Land & Coal Company, the plaintiffs' assignor, could have brought suit on the contract in question if no assignment had been made. The record does not show of what state it is a corporation. The allegation that it was 'doing business in the state of Iowa' does not necessarily import that it was created by the laws of that state. But, if that allegation were held sufficient to show it was an Iowa corporation, the result would be the same, because, in that case, it would appear that the parties to the original contract were all citizens of Iowa, and consequently that the assignor could not have sued the defendants in the circuit court of the United States. The judgment is reversed upon the ground that it does not appear, affirmatively, from the record that the circuit court had jurisdiction, (Metcalf v. Watertown, 128 U. S. 588, ante, 173,) and the cause is remanded for further proceedings in accordance with law.
129.US.151	A United States patent was granted November 20, 1877, for seventeen years, on an application filed December 1, 1876. A patent for the same invention had been granted in Canada, January 9, 1877, to the same patentee, for five years from that day, on an application made December 19, 1876. On a petition filed in Canada by the patentee, December 5, 1881, the Canada patent was, on December 12, 1881,extended for five years from Sanuary 9, 1882, and, on December 13, 1881, for five years from January 9, 1887, under § 17 of the Canada act assented to June 14, 1872 (35 Victoria, c. 26) Held, under § 4887 of the Rev. Stat., that, as the Canada act 'was m force when the United States patent was applied for and issued, and the Canada extension was a matter of right, at the option of the patentee, on his payment of a required fee, and the fifteen years' term of the Canada patent had been continuous and without interruption, the United States patent did not expire before the end of the fifteen years' duration of the Canada patent. It was not necessary to the validity of the United States patent that it should have been limited in duration, on its face, to the duration of the Canada patent, but it is to be so limited by the courts, on evidence 7n pais, as to expire at the same time with the Canada patent, not running more than the seventeen years.	The questions discussed at the bar arise under section 4887 of the Revised Statutes, which is as follows: 'No person shall be debarred from receiving a patent for his invention or discovery, nor shall any patent be declared invalid, by reason of its having been first patented or caused to be patented in a foreign country, unless the same has been introduced into public use in the United States for more than two years prior to the application. But every patent granted for an invention which has been previously patented in a foreign country shall be so limited as to expire at the same time with the foreign patent, or, if there be more than one, at the same time with the one having the shortest term, and in no case shall it be in force for more than seventeen years.' Two propositions as to the construction of this section are contended for by the appellant: (1) That the words 'first patented or caused to be patented in a foreign country' do not mean 'first patented or caused to be patented' before the issuing, or granting, or date, of the United States patent, but mean 'first patented or caused to be patented' before the date of the application for the United States patent; (2) that the declaration of the section that 'every patent granted for an invention which has been previously patented in a foreign country shall be so limited as to expire at the same time with the foreign patent, or, if there be more than one, at the same time with the one having the shortest term,' does not mean that the patent so granted shall expire at the same time with the term to which the foreign patent was in fact limited at the time the United States patent was granted; but that it means that it shall expire when the foreign patent expires, without reference to the limitation of the term of such foreign patent in actual force at the time the United States patent was granted. We do not find it necessary to consider the first of these questions, because we are of opinion that the proper construction of section 4887 upon the second question is that the patent in the present case does not expire before January 9, 1892, the time when the Canadian patent, No. 6,938, will expire. The Canadian patent was extended for the two periods of five years each, under the provisions of section 17 of the Canadian act assented to June 14, 1872, (35 Vict. c. 26,) which was in force when the United States patent, No. 197,314, was applied for and granted, and which read as follows: '17. Patents of invention issued by the patent-office shall be valied for a period of five, ten, or fifteen years, at the option of the applicant, but at or before the expiration of the said five or ten years the holder thereof may obtain an extension of the patent for another period of five years, and after those second five years may again obtain a further extension for another period of five years, not in any case to exceed a total period of fifteen years in all; and the instrument delivered by the patent-office for such extension of time shall be in the form which may be from time to time adopted, to be attached, with reference to the patent, and under the signature of the commissioner, or of any other member of the privy council in the case of absence of the commissioner.' This statute appears to have been strictly complied with in the present case. The Canadian patent No. 6,938, ran, on its face, for five years from January 9, 1877; and, prior to the expiration of that time, and on the 5th of December, 1881, Bate applied for its extension for ten years; and it was, before the five years expired, and on the 12th of December, 1881, extended for five years from January 9, 1882, and, on December 13, 1881, for five years from January 9, 1887. The Canadian patent, therefore, has never ceased to exist, but has been in force continuously from January 9, 1877. It was in force when No. 197,314 was issued; and it has, by virtue of a Canadian statute, in force when the application for No. 197,314 was filed, continued to be in force at all times since the latter patent was granted. This is true, although the Canadian patent, No. 6,938, as originally granted, stated on its face that it was granted 'for the period of five years' from January 9, 1877; and although the instrument granting the first extension of five years states that it is granted 'for another period of five years, to commence and be computed on and from the ninth day of January, which will be in the year one thousand eight hundred and eighty-two;' and although the instrument granting the second extension of five years states that it is granted 'for another period of five years, to commence and be computed on and from the ninth day of January, which will be in the year one thousand eight hundred and eighty-seven.' By the language of section 17 of the Canadian act of 1872, what was granted under it was 'an extension of the patent'—of the same patent—for a further term. Therefore the Canadian patent does not expire, and it never could have been properly said that it would expire, before January 9, 1892; and hence No. 197,314, if so limited as to expire at the same time with the Canadian patent, cannot expire before January 9, 1892. Section 6 of the act of March 3, 1839, (5 St. 354,) provided that a United States patent for an invention patented in a foreign country more than six months prior to the application of the inventor for the United States patent should be limited to a term of fourteen years from the date or publication of the foreign patent. Section 25 of the act of July 8, 1870, (16 St. 201,) provided that the United States patent for an invention 'first patented or caused to be patented in a foreign country' should 'expire at the same time with the foreign patent, or, if there be more than one, at the same time with the one having the shortest term; but in no case shall it be in force more than seventeen years.' Section 4887 of the Revised Statutes provides that 'every patent granted for an invention which has been previously patented in a foreign country shall be so limited as to expire at the same time with the foreign patent, or, if there be more than one, at the same time with the one having the shortest term, and in no case shall it be in force more than seventeen years.' These provisions of the act of 1870 and of the Revised Statutes mean that the United States patent shall not expire so long as the foreign patent continues to exist, not extending beyond seventeen years from the date of the United States patent, but shall continue in force, though not longer than seventeen years from its date, so long as the foreign patent continues to exist. Under section 4887, although, in the case provided for by it, the United States patent may on its face run for seventeen years from its date, it is to be so limited by the courts, as a matter to be adjudicated on evidence in pais, as to expire at the same time with the foreign patent, not running in any case more than the seventeen years; but, subject to the latter limitation, it is to be in force as long as the foreign patent is in force. A contrary view to this has been expressed by several circuit courts of the United States. In October, 1878, in the circuit court for the district of Rhode Island, in Henry v. Tool Co., 3 Ban. & A. 501, it was held that the 25th section of the act of July 8, 1870, meant that the United States patent should expire at the same time with the original term of a foreign patent for the same invention, without regard to any prolongation of the foreign patent which the patentee might procure from the foreign government. In that case, the United States patent was granted October 10, 1871. A British patent for the same invention had been granted to the patentee on the 15th of November, 1860, for fourteen years, and expired November 15, 1874. Thirteen days after the latter date an order was made for the extension of the British patent for four years, the extension bearing date as of the day after the expiration of the original term; but the court held that the United States patent expired on the 15th of November, 1874. That decision was followed by the circuit court for the Southern district of New York, in Reissner v Sharp, 16 Blatchf. 383, in June, 1879, which case arose under section 4887 of the Revised Statutes. In that case, the United States patent, granted October 20, 1874, for seventeen years, was held to have expired on the 15th of May, 1878, because a patent was granted in Canada, under the authority of the patentee, for the same invention, on the 15th of May, 1873, for five years from that day, although in March, 1878, the Canada patent was extended for five years from the 15th of May, 1878, and also for five years from the 15th of May, 1883. In Refrigerating Co. v Gillett, 13 Fed. Rep. 533, in the circuit court for the district of New Jersey, in August, 1882, and in the same suit, in the same court, in August, 1887, (31 Fed. Rep. 809,) in regard to the patent in question in the present suit, and on the same facts here presented, it was held, on the strength of the two circuit court cases above referred to, that the United States patent expired when the original term of the Canadian patent expired But we are of opinion that, in the present case, where the Canadian statute under which the extensions of the Canadian patent were granted was in force when the United States patent was issued, and also when that patent was applied for, and where, by the Canadian statute, the extension of the patent for Canada was a matter entirely of right, at the option of the patentee, on his payment of a required fee, and where the fifteen-years term of the Canadian patent has been continuous and without interruption, the United States patent does not expire before the end of the fifteen-years duration of the Canadian patent. This is true, although the United States patent runs, on its face, for seventeen years from its date, and is not, on its face, so limited as to expire at the same time with the foreign patent; it not being necessary that the United States patent should, on its face, be limited in duration to the duration of the foreign patent. In O'Reilly v. Morse, 15 How. 62, the patent to Morse was issued June 20, 1840, for fourteen years from that day, while section 6 of the act of March 3, 1839, (5 St. 354,) was in force, which required that every United States patent for an invention patented in a foreign country should be 'limited to the term of fourteen years from the date or publication of such foreign letters patent.' Morse applied for his United States patent April 7, 1838. He obtained a patent in France for his invention October 30, 1838. The objection was taken in the answer that the United States patent was void on its face because not limited to the term of the French patent. The circuit court held that the patent was not void, but that the exclusive right granted by it must be limited to fourteen years from October 30, 1838. The same objection was urged in this court, and the same ruling was made. In Smith v. Ely, 15 How. 137, which was a suit on the same patent, under the same facts, the same question arose, and was decided in the same way. A full and interesting discussion of the question is to be found in Canan v. Manufacturing Co., 23 Blatchf. 173, 23 Fed. Rep. 185, in regard to section 4887, which contains the same word 'limited' found in section 6 of the act of 1839, which word is not found in section 25 of the act of July 8, 1870, from which section 4887 was taken. Under this view, the time of the expiration of the foreign patent may be shown by evidence in pais, either by the record of the foreign patent itself, showing its duration, or other proper evidence; and it is no more objectionable to show the time of the expiration of the foreign patent, by giving evidence of extensions such as those in the present case, and thus to show the time when, by virtue of such extensions, the United States patent will expire. We find in the record in this case, among the papers which it states were submitted to the court under the stipulation above referred to, a certificate of the commissioner of patents, dated July 3, 1883, appended to a certified copy of the United States patent, stating that the term thereof is limited so that it shall expire with the patent obtained by the patentee in Canada, No. 6,938, dated January 9, 1877, for the same invention; that the proper entries and corrections have been made in the files and records of the patent-office; that it had been shown that the original patent had been lost; and that the certificate is made because that patent was issued without limitation, as required by section 4887 of the Revised Statutes. While it may be proper, in a case where the date of a foreign patent issued prior to the granting of a United States patent to the same patentee for the same invention is made known to the patent-office prior to the granting of the United States patent, to insert in that patent a statement of the limitation of its duration, in accordance with the duration of the foreign patent, it does not affect the validity of the United States patent if such limitation is not contained on its face. It results from these views that the decree of the circuit court must be reversed, and the case be remanded to that court, with a direction to take such further proceedings as shall be in accordance with law and with the stipulation between the parties, above referred to, and not inconsistent with this opinion.
130.US.256	In Utah a complaint which alleges that the plaintiff is owner and in pdssession of land, that the defendant claims an adverse interest or estate therein, that such claim is without legal or equitable foundation and is void, and that it is a cloud on the plaintiff's title and embarrasses him in the use and disposition of his property and depreciates his property, and which prays for equitable relief in these respects, is sufficient to require the adverse claim on the part of the defendant to be set up, inquired into and judicially determined, and the question of title finally settled. The question, under Rev. Stat. § 2319, as to what customs and rules of miners in a mining district not inconsistent with the laws of the United States are in force in the district when an application is made for a patent of mineral land, is one of fact determinable by the Commissioner of the Laud Office. Rule 4 of the rules of the Blue Ledge mining district in Utah, adopted May 17, 1870, limiting the width of a mining location to 200 feet, was so modified May 4, 1872, that thereafter the surface width was to be governed by the laws of the United States.	This action was brought in a district court of the territory of Utah on the 14th of September, 1880, by the appellant, Parley's Park Silver Mining Company, to establish the validity of its title to certain mining property in Utah, and to have annulled the adverse claim of the appellee, John W. Kerr, to an estate or interest in said property. The suit was founded upon section 1479, Comp. Laws Utah, (section 254 of the practice act,) which is as follows: 'An action may be brought by any person in possession by himself or his tenant, of real property, against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse claim, estate, or interest.' The complaint sets forth the cause of action in the very terms of this section, alleging, in effect, that the plaintiff is owner, subject only to the paramount title of the United States, and in possession of the lands in question; that the defendant claims an adverse interest or estate therein; that the said claim is without legal or equitable foundation and void; and that it is a cloud on plaintiff's title, embarrasses him in the use and disposition of the property, and depreciates its value. Therefore, he prays (1) that the defendant may be required to set forth the nature of his claim, and that all adverse claims of the defendant may be determined by a decree of the court; (2) that by said decree it be adjudged that the defendant has no interest or estate whatever in said land, and that the title of the plaintiff is valid and good; (3) that the defendant be enjoined against asserting any adverse title to said land or premises. The defendant in his answer denies the plaintiff's ownership and possession, and sets up a paramount title in himself, based upon a patent to him from the United States embracing the land in question. The facts agreed upon by the parties and adopted by the court as findings are substantially as follows: Two mining claims in the Blue Ledge mining district of Utah, known as the 'Central Mining Claim' and the 'Lady of the Lake Mining Claim,' together with all the estate and interest therein, were conveyed to the plaintiff by the original locators and their grantees. At the time of the commencement of the suit there was no actual possession of the premises in question, but the plaintiff had, according to the mining laws of the district, possession of parts of those two mining claims, and, according to those laws, such possession is also possession of the disputed premises, provided they are rightfully a part of the Central and Lady of the Lake claims, and not the property of the defendant under his patent for the Claramining claim. This mining claim patented to the defendant is overlapped by the two claims of the plaintiff, and this overlapped portion constitutes the premises in controversy. The plaintiff and its grantors had done the work required by law on its mining claims, but had not at the time obtained a patent for either. The Lady of the Lake mining claim was located July 25, 1875, and was surveyed for patent July 8, 1876. The Central mining claim was located August 19, 1876, was surveyed for application for patent August 2, 1880, and application for patent was made by the plaintiff or its grantors soon thereafter. The Clara mining claim was located July 28, 1872, was surveyed for patent March 31, 1876, was entered and paid for February 20, 1879, and the patent itself was issued February 6, 1880, to the defendant, and held by him at the commencement of the suit. It is also agreed that 'during the 60 days' publication agreed that 'during the 60 days' publication Clara mining claim and mill-site, the owners of the Lady of the Lake mining claim filed in the United States land-office an adverse claim against said application for patent, and thereby made an adverse claim to the areas in conflict between the Lady of the Lake mining claim and the Clara mining claim and Clara mill-site. On the 25th day of July, 1876, agreements in writing were made between the owners of the Lady of the Lake mining claim and the applicants for patent for the Clara mining claim and mill-site, as follows: An agreement whereby the owners of the Clara mill-site relinquished their application for patent for so much thereof as conflicted with the Lady of the Lake mining claim, and the owners of the Lady of the Lake mining claim agreed, in consideration thereof, to prosecute their application for patent for said claim with diligence, and when patent was obtained to convey to the owners of said mill-site or their assignees the area in conflict between said mill-site and said Lady of the Lake mining claim, excepting and reserving, however, to the owners of the Lady of the Lake mining claim any mineral vein under the surface of said conflict area, and also the right to mine and extract any minerals therein. And the owners of the Clara mining claim agreed not to protest the application for patent for the Lady of the Lake mining claim, and at the same time the owners of the Lady of the Lake mining claim, as part of the same agreement, made and delivered to the applicants for patent for the Clara mining claim, and also filed in said United States land-office, a written withdrawal, relinquishing their said protest and adverse claim against the application for patent for the Clara mining claim, and released to the United States and their grantees the lands and premises in conflict between the said Clara and the Lady of the Lake mining claims, the said conflict area containing forty one-hundredths of an acre, more or less.' A copy of the mineral laws of the Blue Ledge mining district was, by agreement, filed with the stipulation, and it was agreed they formed a part of the application for patent for the Clara mining claim. The defendant reserved the right to object to the admissibility of any facts offered with a view to attack or impeach the validity of the patent. The case was submitted to the court on the pleadings, stipulations, and exhibits of the parties. The court rendered judgment in favor of the defendant as the owner of the premises in dispute, and entitled to the possession thereof, and dismissed the plaintiff's action on the merits. This judgment, on appeal to the supreme court of Utah, was affirmed. 2 Pac. Rep. 709. We think it clear that the appellant has no title, color of title, or right of any kind to the area in conflict between the Lady of the Lake mining claim and the Clara mining claim. The facts show that while the application for patent for the Clara mining claim was pending, and during the 60 days' period of publication of notice, the owners of the Lady of the Lake claim (grantors of the appellant) filed their protest and adverse claim against the same, but afterwards, and within 60 days, filed in the local land-office a relinquishment of such adverse claim, and a withdrawal of the protest against the said application for the Clara mining claim. As to the disputed premises within the Central mining claim, the defendant relies upon his patent, which is admitted to include the land in controversy, and was free from any conflict with the Central mining claim at the date of its issue. He claims this patent to be conclusive of the legal title, and that it justifies the presumption that all the prerequisite facts and acts prescribed by law were complied with. The appellant contends that the patent is void, because it was issued in violation of the mining laws of the Blue Ledge mining district, in which the location was made, in that those mining laws, which have the force of a public statute, fixed the width of mining locations within that district at 200 feet. The patent was for a location of 600 feet. The first issue to be determined is whether the complaint is sufficient to authorize the admission of evidence impeaching the validity of a patent, or to sustain a judgment annulling it. This question was directly presented in the case of Ely v. Railroad Co., 129 U. S. 291, ante, 293, (recently decided by this court.) That was an action commenced in a territorial court under the statutes of that territory, almost literally the same as the statutes of Utah, under which this action arose, and the prayer for relief was precisely the same in both complaints. The court held in that case that the rule enforced in the circuit and district courts of the United States, that a bill in equity to quiet title or remove clouds must show a legal and equitable title in the plaintiff, and set forth the facts and circumstances on which he relies for relief, does not apply to an action in the territorial court founded upon territorial statutes, which unite legal and equitable remedies in one form of action. The complaint in the present case, in compliance with the requirements of the practice act of Utah Territory, states in concise language the two ultimate facts upon which the claim for relief depends, that the plaintiff is in possession of the property, and that the defendant claims an interest or an estate therein adverse to him. These are sufficient to require the nature and character of the adverse claim on the part of the defendant to be set up, inquired into, and judicially determined, and the question of title finally settled. The only question, therefore, which remains for consideration, is whether the proofs in the agreed statement of facts, which are incorporated in the findings of fact, show that the patent should have embraced a width of only 200 feet. By section 2319, Rev. St., mineral lands are open to purchase under regulations prescribed by law, and according to the local custom and rules of miners in the several mining districts not inconsistent with the laws of the United States. Counsel for appellant cites the rules adopted in the Blue Ledge mining district, May 17, 1870, to sustain his position. One of these rules (section 4) provides that 'the surface width of any mining location shall not exceed 100 feet in width on each side of the wall-rocks of said lode.' Had that regulation remained in existence and been in operation at the time the Clara mining claim was located, its effect upon the legality and validity of that location, at least as to all the land in excess of 200 feet, could not be doubted; but we find that the miners of Blue Ledge mining district frequently changed their rules in several important particulars, among them those relating to the width of mining locations. We find in the record the 'minutes of a miners' meeting, held on May 4, 1872, to alter and amend the laws of the Blue Ledge mining district.' It is an agreed fact that on the day of that meeting it was known to those miners that an act of congress, relating to the location and extent of mining claims upon mineral lands of the United States, had passed, or was about to be passed. Among the other alterations adopted at that meeting, and, as seems to be agreed, in anticipation of the act of congress, they provided in section 14 that 'the surface width shall be governed by laws of the United States of America.' And in section 19 they add the general repealing clause. The act of congress, which was passed May 10, 1872, provides as follows: 'A mining claim located after the 10th day of May, 1872, whether located by one or more persons, may equal, but shall not exceed, 1,500 feet in length along the vein or lode. * * * No claim shall extend more than 300 feet on each side of the middle of the vein at the surface, nor shall any claim be limited by any mining regulation to less than 25 feet on each side of the middle of the vein at the surface, except where adverse rights existing on the 10th day of May, 1872, render such limitation necessary.' Section 2320, Rev. St. The Clara mining claim, it is conceded, was located under the by-law and the act of congress just quoted. It was located, officially surveyed for application for patent, and formally presented to the land-office for patent, before the Central mine was located. It is admitted that these by-laws were before the commissioner of the general land-office and formed a part of the application. The question as to which of these provisions was in force was one of fact, determinable by the commissioner, whose duty it was also to take official notice of the statute upon the subject. He decided as a fact that the local laws of the district as to the width of the location had not been exceeded in this instance. Whether this decision of the commissioner as to a fact within his jurisdiction goes to the full extent claimed we need not decide. In every view we think it was correct, and that the patent issued by him was according to law, and therefore valid. The judgment of the court below is affirmed.
132.US.158	When an article is designated in a tariff act by a specific name, and a duty imposed upon it by such name, general terms in a later part of the same act, although sufficiently broad to comprehend such article, are not applicable to it. Under the act of March 3, 1883, 22 Stat. 489, embroidered linen handkerchiefs are subject to a duty of thirty-five per cent ad valorem as "handkerclhefs;" and not to thirty per cent ad valorem as "embroideries."	This is an action brought to recover an alleged excess of duties exacted by the collector at the port of New York. Defendants in error had imported certain embroidered linen handkerchiefs, upon which the collector, the plaintiff in error, assessed a duty of 35 per cent. ad valorem, under the eighth paragaph of Schedule J of section 2502, tit. 33, Rev. St., as enacted by section 6 of the act of March 3, 1883, (22 St. 489, 507,) which reads: 'Brown and bleached linens, ducks, canvas, paddings, cot bottoms, diapers, crash, huckabacks, handkerchiefs, lawns, or other manufactures of flax, jute, or hemp, or of which flax, jute, or hemp shall be the component material of chief value, not specially enumerated or provided for in this act, thirty-five per centum ad valorem.' The defendants in error paid this duty under protest, claiming that the goods were only liable to 30 per cent. ad valorem, under the eleventh paragraph of the same schedule, as follows: 'Flax or linen laces, and insertings, embroideries, or manufactures of linen, if embroidered or tamboured in the loom or otherwise, by machinery, or with the needle or other process, and not specially enumerated or provided for in this act, thirty per centum ad valorem.' Samples of the goods in question were produced in evidence, and it appeared that the body of the cloth was linen cambric,—that is, made of flax; that the articles were known in trade as, and were in fact, embroidered handkerchiefs; and that the embroidery was a substantial part of the handkerchief, and was done with cotton. All the requirements as to protest, appeal, and time of bringing suit having been complied with, the court directed a verdict for the importers for the difference claimed, upon which judgment was rendered, and the cause is brought here on writ of error. The articles in controversy were embroidered linen handkerchiefs, and it is contended in support of the judgment that the provisions of the statute should be treated as if they read: 'On linen handkerchiefs, thirty-five per cent. ad valorem, but, if embroidered, thirty per cent. ad valorem.' We cannot concur in this construction. The word 'handkerchiefs' is denominative, and not merely descriptive, and when an article is designated by a specific name and a duty imposed upon it by such name, general terms, in a later part of the same act, although sufficiently broad to comprehend such article, are not applicable to it. Arthur v. Lahey, 96 U. S. 112, 113, and cases cited. The eighth paragraph covers handkerchiefs, and also 'other manufactures of flax, jute, or hemp, or of which flax, jute, or hemp shall be the component material of chief value,' and the eleventh paragraph applies to flax or linen laces, insertings, embroideries, or manufactures of linen, if embroidered or tamboured, and not specially enumerated or provided for in the act Where manufactures of linen other than those enumerated in the first provision are embroidered or tamboured, they are subjected to the rate specified in the second provision. 'The test of the rate of duty is that of embroidery or not.' Arthur v. Homer, 96 U. S. 137, 140. In that case certain linen embroidered dress-patterns had been imported into the port of New York, and were held dutiable at the rate imposed on embroidered manufactures of linen. The acts of March 2, 1861, of July 14, 1862, and of June 30, 1864, and the Revised Statutes of 1874, bearing upon the subject, were considered. By none of these acts were such dress-patterns specifically enumerated as subject to a different duty; but linen handkerchiefs were, as by the act of 1883 they are, mentioned as among the linen goods for which a certain rate was designated. In Solomon v. Arthur, 102 U. S. 208, 211, 212, Mr. Justice BRADLEY, delivering the opinion of the court, makes the distinction between the use of a description applicable to many kinds of goods having different names, and the use of the specific name itself, entirely clear, and upon that distinction the disposition of the case turned. We consider that distinction applicable here, and hold that these handkerchiefs, although embroidered, did not fall within the second provision. The judgment must be reversed, and the cause remanded, with instructions to grant a new trial, and it is so ordered.
132.US.50	The petition of a bankrupt in bankruptcy, in winch he states under oath that he owns no real estate and holds no interest in real property, is evidence of the execution and validity of a prior deed of his real estate in a suit in which he contests such execution and validity. The proof in this case fails to show imbecility, dotage or loss of mental capacity on the part of the appellee at the time when the contract in dispute was made. An executed agreement by one party to cause the debts of the other to be cancelled by his creditors, valid in its inception, is not invalidated as to the debtor by reason of the settlements being effected for a small percentage, or even by the employment of improper means to effect them. A conveyance by a debtor, deeply indebted, and in anticipation of decrees and judgments which, added to existing incumbrances, will amount to the value of the property conveyed, will lead a court of equity to presume that the instrument was executed in fraud of the creditors. ff a person conveys his property for the purpose of hindering, delaying or defrauding his creditors, and for many years acquiesces and concurs in devices, collusive suits and impositions upon the court in furtherance of that purpose, without taking any step to annul such conveyance or stop such proceedings, a court of equity will not aid him or his heirs to recover the property from the grantee or his heirs after the fraud is accomplished. The maxim "iii par delicto, 1potior est conditio defendentis" is decisive of this case.	The main grounds of the bill are (1) that the agreement or conveyance of May 14, 1869, was never delivered, but was only a paper in contemplation to be executed, and that the execution and delivery of it were finally abandoned; and (2) that said contract was procured by fraud on the part of Dent to enable him to possess himself of the estate of Ferguson without paying him a valuable consideration therefor, and that Ferguson was of weak mind, in his dotage, and easily imposed upon by Dent, between whom and himself the relation of principal and agent existed. We concur fully in the position assumed by both the circuit justice and the district judge, that the execution and delivery of the agreement and conveyance of May 14, 1869, by Ferguson to Dent, were sufficiently proven. A careful examination of the evidence, especially that introduced in behalf of complainants, leaves no doubt on this point. The paper was frequently recognized and acted upon by Ferguson. He received part, at least, of the money to be paid under it, and frequently called for more, complaining of Dent that he had not fully paid the amount agreed to in the contract. He received the two Dillard notes for $3,000 each, as provided for in it, in part payment, and also accepted Dillard's deed of trust on the property conveyed to him, as security therefor. He solemnly reaffirmed it over his own signature and seal on the 23d of August, 1869, in a deed introduced in evidence by complainants, in which deed the recital is as follows: 'Whereas, on the 14th of May, 1869, H. G. Dent and A. M. Ferguson entered into an agreement of purchase and sale by which said Dent purchased the equity of said Ferguson in all his real estate in Shelby county for the sum of $10,000, $4,000 of which was to be paid in cash, and $6,000 in notes,' etc. He again recognized and carried out his part of it when on the 25th of May, 1869, he made a deed to Dillard in pursuance of its terms. His petition in bankruptcy, filed on April 29, 1878, in which he stated on oath that he did not own any real estate, nor hold any interest in any real property, except a leasehold that would expire in less than a month, though not a technical estoppel as a defense in this suit, is at least evidence of the execution and validity of the instrument in question. In view of these facts, which appear from the proofs and pleadings of the complainants, we do not deem it necessary to review the mass of testimony offered by the complainants to sustain their charge that Dent purloined the writing from Ferguson's papers. As to the second point, we cannot assent to the conclusions of the court below. The evidence, we think, fails to show any imbecility, dotage, or loss of mental capacity on the part of Ferguson in 1869, when the contract was made. About fifteen witnesses produced by the complainants were questioned as to the character and condition of his mind, three, and perhaps four, of whom speak of him as being weak, ignorant, and childish; but the general tenor of the testimony of the others, who had any opinions to express, was directly the reverse. The combined effect of this testimony, taken as a whole, putting out of view the evidence on behalf of the defendants, leaves on the mind a decided impression that Ferguson, though to a certain extent illiterate, was a man of good, sound sense, of large experience in business, and capable of transacting his own affairs. Outside of the nature of the transaction itself, and the relation of principal and agent between him and Dent, which will be presently considered, there is very little, if any, testimony that he was ignorant of his rights or of the value of his property, or in the slight test degree incompetent to comprehend the terms of the contract in question, or to understand the obligations of an oath. Nor does a single witness testify that Dent ever falsely represented to Ferguson the amount of his indebtedness, ever underestimated to him the value of his property, or ever exaggerated to him the danger from creditors. Even as to who suggested the contract of May 14, 1869, the testimony, slight as it is, is conflicting and uncertain. It is, however, insisted that the price agreed to on the face of the instrument itself was so grossly inadequate as to create the presumption of fraud and undue influence, aside from, and independent of, any proof other than the single fact that the parties thereto bore the relation to each other of principal and agent. Assuming for the present, and for present purposes only, that the agreement was bona fide as respects third persons, creditors of Ferguson and Dent, and considering it with exclusive reference to the reciprocal rights of the two parties to it, we do not think the evidence is such as to raise the presumption of fraud, and therefore to call for or justify the interposition of a court of equity for the cancellation of the contract. The fairness of the transaction on this point should be determined by the condition of things at the time the contract was made and executed, and not by what occurred afterwards, except so far as subsequent developments may reflect light upon it. What were the circumstances under which this instrument was executed? A. M. Ferguson was then possessed of a large estate in Memphis, consisting of valuable city lots with improvements, all estimated by competent witnesses to be worth $100,000, more or less. At that time he was indebted to various persons in sums which, we believe, it is admitted amounted to as much as the value of his property. Many of these debts, perhaps the majority in amount, originated as joint promisor with, or as indorser or surety for, Henry G. Dent, who had been his agent for the renting of his property and intimate friend for many years, and who was himself wholly insolvent. But, whatever the origin of his debts, they had become, as between Ferguson and his creditors, legal and binding upon him; nor did the fact that they were the liabilities of an indorser lighten the burden of them, or lessen the peril of impending insolvency, or abate the eagerness of pursuing creditors. These creditors had been for some time active and pressing for payment, and his real estate was heavily incumbered with judgments, decrees, deeds of trust, sheriff's deeds, taxes, and assessments for public improvements. Several other suits, aggregating nearly $50,000, were proceeding to judgment. Some idea of his embarrassed condition may be found from the fact that on the 29th of March, 1869, a bill had been filed to reach his equitable rights and interest in the property, the subject of this eontroversy, in which the complainant alleged on oath that an execution issued on a judgment at law obtained by him against Ferguson had been duly returned, 'No property found whereon to levy,' and that after diligent search and inquiry he could not find any property in Memphis to which Ferguson had an unincumbered legal title subject to an execution at law. Such was the condition of Ferguson's affairs when he made the agreement of May 14, 1869. The consideration of this agreement was that Ferguson should receive $4,000 in cash, and $6,000 in notes, and that Dent should 'discharge the liens;' not that he should pay them in full. This discharge Dent fully procured. Ferguson was fully discharged, and all claims against him were legally canceled; not only those then existing, but also those that were impending, and which afterwards matured. This fact is thus stated in the words of complainants' bill: 'The liabilities of the said A. M. Ferguson by judgments, trust-deeds, mortgages, and mortgages in the form of warranty deeds have all been settled and paid off, except as hereinafter stated; and the said complainants, as heirs at law of the said A. M. Ferguson, are entitled to have the said real property handed over to them free and discharged of all liens.' If the promise to cancel the debts was a fair and valid transaction when it was made, it did not become less so because subsequent occurrences enabled Dent to effect a settlement with the creditors upon the payment of a small percentage of their respective claims; and, if the means he employed to effect such compromises were not proper, it might give the overreached creditors cause of complaint, but certainly not Ferguson. Had Dent been able to persuade the creditors to give a release of their claims without any consideration whatever, that could not retroact and make inadequate what was an adequate consideration when the contract was made. When it was made, no one knew that the debts could be compromised for much less than their face value, as was done by Dent; for, as the district judge truly remarks, 'the astounding fact in this record is that the creditors did not appropriate all this property to their debts.' And yet it is an undeniable fact that Dent did avert such an appropriation, and that Ferguson was fully discharged, and the claims were legally canceled, by methods not fully developed, but assented to and facilitated by Ferguson. For instance, a judgment for over $22,000 in favor of H. B. Claflin & Co., of New York, was settled for $1,000; a claim in favor of Louis Selby for $12,622.11, for $1,325; and an assessment for $6,998 for the Nicholson pavement, stated in said agreement of May 14, 1869, to be a lien on the property conveyed, was entirely defeated on legal grounds. The consideration as to the extinguishment of the debts was fully performed. The $6,000 of notes were received by Ferguson, and afterwards indorsed to his relatives. As to how much of the remaining $4,000 coming to him under the agreement was paid to him in cash, there is much conflict of testimony, which, owing to the lapse of time and the death of both parties to the contract, cannot be reconciled. Apparently, $1,400 was paid soon after; for the instrument dated August 23, 1869, which the complainants introduced and rely on, states that the payment of that sum was made on that day. C. L. Morrison, a witness for complainants, whose testimony their counsel declares, in his brief, to be more important than that of any and all the other witnesses for complainants, testifies that from 1871 to 1876 he paid to Ferguson from $80 to $90 a month out of the rents collected by him from a portion of the property, and that he saw Dent pay him during that period out of his own pocket about $300 a year. These sums aggregate a larger amount than $4,000. Our conclusion, therefore, is that the contract, considered apart from its bearing on other creditors, does not, in the absence of other proof, lack the essential qualities of adequacy and fairness as between the parties thereto themselves. If this be so, the point as to principal and agent, upon which so much stress has been laid, is of minor importance. The doctrine as to this fiduciary relation, applied to its full extent, is simply a rule of evidence which, under some circumstances, imposes upon an agent the burden of proving the fairness and justice of the transaction with his principal within the scope of his agency. If the contract was valid as to the creditors of Ferguson, the consideration therein expressed was sufficient to satisfy this burden. The evidence shows that for many years Dent was an agent of Ferguson for the renting of his property, with more intimate relations than with his other patrons. But the record does not show that he was ever employed to buy or sell real estate for Ferguson. On the contrary, there is positive testimony that his (Ferguson's) traffic in that business was carried on by himself alone. We have considered this case, so far, upon the assumption of the circuit justice that the agreement was executed and delivered by Ferguson to Dent in good faith as to Ferguson's creditors. We do not concur in this assumption. If the voluminous record before us discloses a single fact tending to sustain that assumption, except a general expression of opinion by some of the witnesses that he was an honest man, it has escaped our search. The instrument itself was executed under circumstances which would lead a court to presume fraud upon creditors. It was a conveyance by a person deeply indebted, in anticipation of decrees and judgments, which, added to the existing incumbrances, amounted to the value of his property. We therefore agree with the district judge, on this point, that the real contract was one between Ferguson and Dent to defraud the creditors out of the property conveyed, and to so conceal and cloud the title that they could be circumvented, hindered, and delayed, and coerced into settlements and compromises. We think the evidence shows beyond doubt that Ferguson willingly participated for 10 years in carrying out this plot. Both parties knew that $10,000 could not be saved for Ferguson, or any residuum out of the property for Dent, unless creditors could be wrought upon by some means to accept less than their claims. Neither party to such a contract could have been deceived or imposed upon about that result. Both knew the record fact that the incumbrances perfected, and the incumbrances rapidly perfecting, exceeded in amount the value of the property. That Ferguson had that fraudulent design when he signed his name to the instrument, and turned over the property to Dent, as its owner, was directly sworn to by witnesses introduced by the complainants, and examined by them,—of of course, for a very different purpose. Mrs. A. G. Morrison, a witness produced to show that Dent had fraudulently abstracted certain papers from Ferguson deemed by him to be important and valuable, deposes as follows, in reply to the question, 'What was it Mr. Ferguson told you about the sale of the property?' (referring to the sale now under consideration:) 'He told me he went on Mr. Dent's bond, as near as I can remember. Mr. Dent went into business, and broke, and the property was covered up some way in Mr. Dent's name to keep it from being sold. I couldn't tell you how long Mr. Ferguson told me, but I am confederates in fraud. Mr. Justice BALDWIN, Dent's name, and he says: 'There is wherein Dent has robbed me. He would not give me those papers back." In reply to another question, which the witness said did not repeat her previous answer accurately, she replied: 'He didn't say it in those words. * * * He says he turned the property over to Dent, put it in his name,' etc. Again: 'He said something about a receiver being appointed, and he says: 'I turned the property over to Dent to keep it from being sold. I don't want it sold, because the rent of my property will pay the debt," etc. Another witness for the complainants, Robert McWilliams, testifies as follows concerning a conversation had with Ferguson in 1878: 'If I remember correctly, he said that he had made over his property to Dent, with the tacit understanding that he should have sufficient to live on until his discharge in bankruptcy, and then Dent would return or turn over the property to him again.' In rely to the question, 'What, if anything, do you know concerning the arrangement of A. M. Ferguson and Henry G. Dent concerning the Ferguson property on Beale, Hernando, and De Soto streets, and elsewhere?' he said: 'I know of nothing, except that Ferguson told me that he had conveyed this property to Dent with the tacit understanding that he (Ferguson) should have enough out of the rents of the property to live on until he had got through bankruptcy, when the property should be returned to him again.' The question arises, if a person conveys his property for the purpose of hindering, delaying, or defrauding his creditors, and for 11 years acquiesces and concurs in the devices, collusive suits, and impositions upon the court in furtherance of this purpose, without taking a single legal step to annul said conveyance or to stop such proceedings, will a court of equity aid him or his heirs to recover the property from the grantee or his heirs after the fraud is accomplished? This court has answered that question in the negative in Randall v. Howard, 2 Black, 585. In that case the complainants and defendant had made an agreement to defeat the claims of third persons to certain lands which the complainants had mortgaged to the defendant to secure a debt, so as to cloak the ownership by means of a foreclosure sale at which the defendant should purchase and hold the nominal title. After obtaining the title, he fraudulently dispossessed the complainants, and asserted the right of ownership in himself. The prayer of the bill was to restrain the defendant from disposing of the land, and to restore it, or so much of it as remained after paying the debt, to complainants. The court (Mr. Justice DAVIS delivering the opinion) held that the agreement was a fraudulent one to defeat a claim set up by other parties for a portion of the mortgaged lands by the covering up, through the aid of the court, the real ownership of the property, and said, (page 588:) 'A fraudulent agreement was entered into to defeat, as is charged, 'a fraud attempted against the complainants.' * * * A court of equity will not intervene to give relief to either party from the consequences of such an agreement. The maxim, in pari delicto potior est conditio defendantis, must prevail. It is against the policy of the law to enable either party, in controversies between themselves, to enforce an agreement in fraud of the law, or which was made to injure another;' citing Story, Eq. Jur. § 298; Bolt v. Rogers, 3 Paige, 156; and Wilson v. Watts, 9 Md. 356. The same principle was applied in Wheeler v. Sage, 1 Wall. 518. In that case an agreement was entered into between complainants and defendant to secure the title to valuable real estate of an insolvent debtor, at the expense and sacrifice of his creditors, which the defendant violated, and, in conjunction with another person, secured an interest in the property to himself. The bill prayed that he be declared a trustee for the complainants, and required to convey to them that portion of the land to which, under the agreement, they were entitled. The court (Mr. Justice DAVIS delivering the opinion) said, (page 529:) 'Generally, when a party obtains an advantage by fraud, he is to be regarded as the trustee of the party defrauded, and compelled to account; but, if a party seeks relief in equity, he must be able to show that on his part there has been honesty and fair dealing. If he has been engaged in an illegal business, and been cheated, equity will not help him.' And then, after a review of the evidence in that case, the opinion concluded in these words: 'A proceeding like this is against good conscience and good morals, and cannot receive the sanction of a court of equity. The principle is too plain to need a citation of authorities to confirm it. It is against the policy of the law to help either party in such controversies. The maxim, in pari delicto' etc. Page 530. We cannot assent to the opinion of the district judge that this maxim has no application to the case at bar. In the views prepared by him at the request of Mr. Justice MATTHEWS, and which were adopted by the latter, he says, in speaking of the contract of May 14, 1869, that it is only 'in form a contract for the sale of property,' and proceeds: 'The real contract was one to defraud the creditors of Ferguson and Dent out of this property, and it was calculated that this could be done on a basis of $10,000 to Ferguson, to be realized out of the property itself, and all the balance to Dent, whatever that might be. But this was an unequal, unconscionable, and unfair division, particularly in view of actual results, in the accomplishment, of which Dent has risked nothing but his time and labor. Ferguson has agreed to give too much for Dent's services in that behalf, * * * One of the objects of the bill is to prevent the defendants from reaping the lion's share of the benefits of this confessed fraud; and the maxim, in paridelicto potior est conditio defendantis, * * * has no application whatever to a case like this.' From this view we dissent. We find no authority for the idea that it is the province of a court of equity to make a fraudulent debtor the special object of its favor because he has not received a large enough consideration for his 'confessed fraud.' That court is not a divider of the inheritance of iniquity between the respective heirs of two confederates in fraud. Mr. Justice BALDWIN, delivering the opinion of the court in Bartle v. Coleman, 4 Pet. 184, 189, uses the following language: 'The law leaves the parties to such a contract as it found them. If either has sustained a loss by the bad faith of a particeps criminis, it is but a just infliction for premeditated and deeply practiced fraud, which, when detected, deprives him of anticipated profits, or subjects him to unexpected losses. He must not expect that a judicial tribunal will degrade itself by an exertion of its powers, by shifting the loss from the one to the other, or to equalize the benefits or burdens which may have resulted by the violation of every principle of morals and of laws.' Or, as Chancellor WALWORTH states it: 'Wherever two or more persons are engaged in a fraudulent transaction to injure another, neither law nor equity will interfere to relieve either of those persons, as against the other, from the consequences of their own misconduct.' Bolt v. Rogers, 3 Paige, 157. The cases relied upon by the court below to sustain its position do not shake the authorities we have cited to show that courts of equity refuse to annul, and also to enforce, contracts in fraud of the rights of others, when called to act as between the parties; for there is a distinct class of decisions affecting subsequent and collateral contracts not partaking of the fraud which infects the main transaction. The principles established by those decisions in diversified forms, according to the varying cases, is that a new contract, founded on a new and independent consideration, although in relation to property respecting which there had been unlawful or fraudulent transactions between the parties, will be dealt with by the courts on its own merits. If the new contract be fair and lawful, and the new consideration be valid and adequate, it will be enforced. If, however, it be unfair or fraudulent, or the new consideration so inadequate as to import fraud, imposition, or undue influence, it will be rescinded, and justice done to the parties. Armstrong v. Toler, 11 Wheat. 258; McBlair v. Gibbes, 17 How. 232; Brooks v. Martin, 2 Wall. 70; Bank v. Bank, 16 Wall. 483; Railroad Co. v. Durant, 95 U. S. 576. But in all of those cases the court was careful to distinguish and sever the new contract from the original illegal contract. Whether, in the application of this principle, some of them do not trench upon the line which separates the cases of contracts invalid in consequence of their illegality from new and subsequent contracts arising out of the accomplishment of the illegal object, is not the subject of inquiry here. The present case does not involve any question of a subsequent and distinct contract, but seeks relief directly from the original fraud, to which the person under whom complainants claim was a contracting party, fully sharing in the fraudulent intent. We do not think that complainants' counsel gives an explanation of the testimony of McWilliams which strengthens their claim to relief. That claim, stated in his own language, is 'that Ferguson placed his property in Dent's hands, to be used in liquidating his debts, and, when this was done, the property, or so much of it as had not been consumed in the payment of debts, was to be restored to Ferguson, and that in the mean time Ferguson was to have enough of the rents to live on.' Such an arrangement, so entirely inconsistent with the absolute conveyance of the property as executed between the parties, has all the features of a fraud upon creditors. It reserves to the grantor the enjoyment of the rents and profits of the property conveyed, to which the creditors have a right of immediate appropriation to their debts, and involves a secret trust for the return to himself of property of which such creditors have the immediate right of sale. The law does not countenance any such transaction, but leaves both parties in the position where they have placed themselves. Lukins v. Aird, 6 Wall. 78. The district judge is mistaken when he says that 'one of the objects of the bill is to prevent the defendants from reaping the lion's share of the benefits of this confessed fraud.' The object of the suit, as clearly and explicitly stated in the bill, is to secure to the complainants the entire benefit of the confessed fraud by having all the property, with all the intermediate rents and profits added, free from all liens and liabilities, returned to them. The real complaint is that Dent, the fraudulent vendee, refused to perform his part of the fraudulent understanding with Ferguson, the fraudulent vendor; and the avowed purpose of the suit is to compel the defendants to perform it. The prayer cannot be granted without overturning established principles of equity. The decree of the circuit court should therefore be reversed, and the case be remanded to that court, with a direction to dismiss the bill, with costs. So ordered.
130.US.50	Searls, the appellee, filed a bill in the Circuit Court of the United States for the Eastern District of Michigan against Worden -for infringement of letters patent. After hearing, a decree was entered in that case in his favor for the recovery of $24,960.31 damages and costs. Worden appealed to this court, but gave no supersedeas bond. Thereupon execution issued on the decree, which was levied on certain lots, the property of Ballard the appellant. Searls then filed his bill in the Circuit Court in aid of the execution, praying to have a conveyance by Worden to Ballard of the lots levied upon set aside, as made to defraud Worden's creditors. On the final hearing of that case the conveyance was set aside as fraudulent, from which Ballard took this appeal. Meanwhile Worden's appeal in the patent suit was reached on the docket in this court, and, after hearing, the judgment below was reversed, and the cause was remanded to the Circuit Court, with directions to dismiss the bill. See 121 U. S. 14. Thereupon Ballard moved in this case, on the records in the two cases, and on affidavits, to reverse the decree of the court below, and to remand this cause to the Circuit Court, with direction to dismiss the bill. Held, that if such a course could properly be taken in any case, it would be improper to take it in this case; but that, as the appellant might be subjected to great injustice if the cause should go to hearing on the appeal in the present condition of the record, the cause should be remanded with instructions to the Circuit Court to allow the defendant below to file such supplemental bill as he might be advised, in the nature of a bill of review, or for the purpose of suspending or avoiding the decree, upon the new matter arising from the reversal of the former decree in Worden v. Searls.	The appellant has made a motion that the decree appealed from in this case, so far as it affects the said appellant, be reversed, and that the cause may be remanded to the circuit court, with direction to dismiss the bill. This motion proposes that the decree be reversed without argument of the cause, in view of extrinsic facts, which are made to appear by the records of this court and of the circuit court, and by affidavits. If such a course can be properly taken in any case, we think it would be improper in the present, since the decree may be perfectly correct and free from objection on the facts of the case as they appear upon the record, and it is possible to be correct, notwithstanding the facts alleged by the appellant. These facts, however, are of such a character that the appellant may be subjected to great injustice if the cause should go to hearing on the appeal in the present condition of the record; and, as they have occurred since the appeal was taken, there seems to be no mode of affording relief to the appellant except by sending the cause back to the circuit court for the purpose of allowing supplementary proceedings to be had in that court. The facts as stated by the appellant, and not denied by the appellee, are as follows: 'On the 12th day of July, 1880, Anson Searls, the appellee in this cause, filed in the circuit court of the United States for the Eastern district of Michigan his bill of complaint against Alva Worden and John S. Worden, for the infringement of a patent, and such proceedings were had in the cause that on the 5th day of September, 1883, a decree was entered in said cause in said circuit court whereby it was decreed that the said Alva Worden and John S. Worden infringed the patent, and should pay over to the said Anson Searls $24,960.31. That upon the entry of said decree the defendants appealed the case to this court. But the defendants Alva Worden and John S. Worden were unable to give the necessary bond to operate as a supersedeas bond upon said appeal. On the 17th of September, 1883, the complainant issued an execution on his decree, and placed it in the hands of the marshal of said district. On the 18th of September, 1883, the marshal, under the execution, levied upon certain lots in the city of Ypsilanti, county of Washtenaw, and upon certain lands in the town of Sumpter, county of Wayne, all in the state of Michigan, in the Eastern district thereof, the property of the said appellant, Harrison H. Ballard, and on other lands in the city of Ypsilanti, belonging to the said Alva Worden and John S. Worden, but which were mortgaged to Mary Ann Andrews, Henry M. Curtis, Henry Van Tuyl, and Charles King. That, on the 10th day of October, 1883, the said Anson Searls, in aid of his execution against the Wordens, filed in the said circuit court of the United States for the Eastern district of Michigan his bill of complaint against Harrison H. Ballard, Mary A. Andrews, Henry M. Curtis, Henry Van Tuyl, Charles King, Alva Worden, and John S. Worden, to set aside as fraudulent and void, as to the creditors of the said Alva Worden and John S. Worden, the conveyances under which the said Harrison H. Ballard held the lands so levied upon; and also the mortgages given by the said Alva Worden and John S. Worden on the said lands belonging to them to the said Mary Ann Andrews, Henry M. Curtis, Henry Van Tuyl, and Charles King. That such proceedings were had in said last-mentioned cause, that the cause was brought to a final hearing, and a decree entered on the 24th day of November, A. D. 1884, in which it was decreed that the mortgages given by the said defendants Alva Worden and John S. Worden to the said defendants Mary A. Andrews, Henry M. Curtis, Henry Van Tuyl, and Charles King, were good and valid liens upon the lands mentioned therein, and that the several conveyances to Harrison H. Ballard were fraudulent and void as against the creditors of the said Alva Worden and John S. Worden. Thereupon the said defendant Harrison H. Ballard prayed an appeal to the supreme court of the United States to reverse the said decree, as far as it related to him. That the said appeal was allowed, and the amount of the appeal-bond was fixed at the sum of $8,500. That the said bond was duly executed and approved by one of the judges of the said circuit court, and filed in the office of the clerk of said circuit court. That on the 8th day of October, 1885, the clerk of the said circuit court of the United States for the Eastern district of Michigan transmitted the transcript of the record in the case of Anson Searls v. Harrison H. Ballard et al. to the clerk of the supreme court of the United States, and that the said transcript was filed in the office of the clerk of this court on the 13th day of October, 1885, and now stands on the docket for the October term, 1888, as No. 144. That since the appeal in this case, the appeal in the original case of Alva Worden and John S. Worden, appellants, v. Anson Searls has been heard in this court, and a decree entered thereon on the 27th of March, 1887, wherein and whereby it was, among other things, ordered, adjudged, and decreed that the final decree of the said circuit court in this cause be, and the same is hereby, reversed, with costs, and that the same be remanded to the said circuit court with a direction to dismiss the bill with costs. That on the 8th day of August, 1887, this court issued its mandate in the said case of Alva Worden et al., appellants, v. Anson Searls to the said circuit court, in which, among other things, the said circuit court of the United States for the Eastern district of Michigan was directed to dismiss the bill, with costs. That said mandate was filed in the said circuit court on the 3d day of October, 1887. That on the 3d day of September, 1888, a decree was entered in pursuance of said mandate in the case of Anson Searls v. Alva Worden and John S. Worden, (the original case,) dismissing the bill of complaint, with costs.' It is apparent from this statement that the whole basis and foundation of the present suit has disappeared by the decree rendered in the former case of Worden v. Searls, reported in 121 U. S. 14, 7 Sup. Ct. Rep. 814. Surely there ought to be some mode of relieving a party in such a case. The appellee is endeavoring to collect the amount recovered by a decree which has been reversed, and in a case in which his bill has been dismissed on the merits. The object of the present suit is to aid the execution of that former decree by having declared void certain conveyances of property by the defendants, which the appellee has caused to be levied on for the satisfaction of the decree. If the former decree had been reversed before the taking of the present appeal, the appellant could have instituted supplementary proceedings in the circuit court for obtaining the benefit of that reversal. The conveyances sought to be set aside were good as between the parties, and only void as to creditors; and as the appellee, by the reversal of his decree, ceased to be a creditor, his bill to have the conveyances set aside had no longer any ground to stand on. A supplemental proceeding of some kind, therefore, would have been the right of the defendant, the present appellant. But, as the case had been removed to this court by appeal before that decree of reversal was rendered, such a proceeding was out of his power. Nor could it be taken in this court, where the case was pending on appeal, for this court cannot entertain proceedings that require the exercise of original jurisdiction, except in the few cases pointed out in the constitution. The only course which can be properly pursued is to remand the cause to the circuit court, with instructions to allow the appellant to file a supplemental bill, in the nature of a bill of review, or a bill to suspend or avoid the operation of the decree, according to the mode pointed out by Lord Redesdale in his work on Equity Pleading. He says, (page 86:) 'But if a case were to arise in which the new matter discovered could not be evidence of any matter in issue in the original case, and yet clearly demonstrated error in the decree, it should seem that it might be used as ground for a bill of review, if relief could not otherwise be obtained.' And on page 95 he says: '(5) The operation of a decree signed and enrolled has been suspended in special circumstances, or avoided by matter subsequent to the decree, upon a new bill for that purpose;' and he gives an instance occurring in the time of Charles II. These views are adopted by Mr. Justice Story in his work on Equity Pleading. See sections 415, and note, 428. We do not decide what precise form such a proceeding should take. The appellant will be advised by his counsel in this regard. The appellee, in opposition to the appellant's motion, has produced the certificates of the marshal of the United States for the Eastern district of Michigan, showing that on the 10th day of December, 1884, he sold the property in dispute, or some part thereof, to certain persons, under the execution issued upon the decree in the case of Anson Searls v. Alva Worden and John Worden, (which was reversed by this court, as before stated,) and that the purchasers would be entitled to a deed of said lands, and the sales would become absolute at the expiration of 15 months, unless previously redeemed as prescribed by the statute of Michigan. It is possible that these sales may complicate the inquiry to be made by the court upon the supplemental proceedings of the appellant; but we do not see that they can preclude such proceedings. It is not shown that the purchasers have advanced any money on the faith of the purchases, and it is possible that the appellant can show that they were made for the benefit of the appellee. In either case, the sales would be liable to be set aside on the reversal of the decree. Should the circuit court deem it proper to require that the purchasers be made parties to the supplemental proceedings, the facts of the case could be fully elicited, and right could be done without prejudice to any of the parties. Our decision is that the cause be remanded to the circuit court, with instructions to allow the appellant, defendant below, to file such supplemental bill as he may be advised, in the nature of a bill of review, or for the purpose of suspending or avoiding the decree, upon the new matter arising from the reversal of the decree in the former case of Anson Searls v. Alva Worden and John Worden, and that such proceedings be had thereon as justice and equity may require, and it is so ordered.
132.US.304	In Iowa it is provided by statute that " any person who shall hereafter solicit insurance or procure applications therefor, shall be held to be the soliciting agent of the insurance company or association issuing a policy on such application, or on a renewal thereof, anything in the application or policy to the contrary notwithstanding." Held, (1) That a person procuring an application for life insurance in that State became by the force of the statute the agent of the company in that act, and could not be converted into the agent of the assured by any provision in the application; (2) That, if he filled up the application (which he was not bound to do) or made representations or gave advice as to the character of the answers to be given by the applicant, his acts in these respects were the acts of the insurer; (3) That a "provision and requirement" (printed on the back of the policy issued on the application), that none of its terms could be modified or forfeitures waived except by an agreement in writing signed by the president or secretary, "whose authority for this purpose will not be delegated" did not change the relation established by the statute of Iowa between the solicitor and the insured.	This action is upon a policy of insurance on the life of Richard Stevens, the intestate of the defendant in error. There was a verdict and judgment against the insurance company. The policy recites that 'it is issued and accepted upon the condition that the provisions and requirements printed or written by the company upon the back of this policy are accepted by the assured as part of this contract as fully as if they were recited at length over the signatures hereto affixed.' The signatures here referred to are those of the president and secretary of the company. The application for insurance was taken in Iowa by one Boak, a district agent of the company in certain named counties of the state, 14 in number, having written authority 'to prosecute the business of soliciting and procuring applications for life insurance policies within and throughout said territory.' Among the numerous questions propounded in the application was the following: 'Has the said party [the applicant] any other insurance on his life? If so, where and for what amounts?' The answer as it appears in the application is: 'No other.' That answer, as were all the answers to questions propounded to the applicant, was written by the company's agent, Boak. In reference to the above question and answer, the latter testified: 'I asked him [Stevens] the question if he had any other insurance, as printed in the application and as we ask every applicant, and he told me he had certain certificates of membership with certain cooperative societies, and he enumerated different ones, and said he did not know whether I would consider that insurance or not. I told him emphatically that I did not consider them insurance, and we had considerable conversation about it. He wanted to know my authority for saying I did not consider them insurance. I gave him my authority,—gave him my reasons,—and he agreed with me that these co-operative societies were in no sense insurance companies, and in that light I answered the question 'No.' Question. Did you tell him at the time that the proper answer was 'No,' after he had stated the facts? Answer. I did. Q. Who wrote the answer in there? A. I did.' The application also contained these clauses: 'And it is hereby covenanted and agreed that the statements and representations contained in this application and declaration shall be the basis of and form part of the contract or policy of insurance between the said party or parties signing this application and the said Continental Life Insurance Company, which statements and representations are hereby warranted to be true, and any policy which may be issued upon this application by the Continental Life Insurance Company, and accepted by the applicant, shall be so issued and accepted upon the express condition that if any of the statements or representations in this application are in any respect untrue, or if any violation of any covenant, condition, or restriction of the said policy shall occur on the part of the party or parties signing this application, then the said policy shall be null and void, and all moneys which may have been paid on account of said policy shall be forfeited to the said company. 'And it is hereby further covenanted and agreed that the officers of the said company, at the home office of the said company, in Hartford, Conn., alone shall have authority to determine whether or not the policy of insurance shall be issued on this or any application, or whether or not any insurance shall take effect under this or any application. 'And it is hereby further covenanted and agreed that no statements or represent tations made or given to the person soliciting this application for a policy of insurance or to any other person shall be binding on the said company, unless such statements or representations be in writing in this application when the said application is received by the officers of the said company at the home office of the said company, in Hartford, Conn.' Among the 'Provisions and Requirements' printed on the back of the policy are the following: '(11) The contract between the parties hereto is completely set forth in this policy, and the application therefor, taken together, and none of its terms can be modified, nor any forfeiture under it waived, except by an agreement in writing, signed by the president or secretary of the company, whose authority for this purpose will not be delegated. '(12) If any statement made in the application for this policy be in any respect untrue, this policy shall be void, and all payments which shall have been made to the company on account of this contract shall belong to and be retained by the company: provided, however, that discovery of the same must be made by the company, and notice thereof given to the assured, within three years from the date hereof.' It was admitted on the trial that at the date of Stevens' application he had insurance in co-operative companies to the amount of $12,000. The company contended in the court below that by the terms of the policy it was discharged from liability by reason of the answer, 'No other,' to the question as to other insurance on the life of the applicant; its contention being that the certificates of membership in co-operative societies constituted insurance, which should have been disclosed in the written answer to that question. The court below charged the jury, in substance, that if, at the time the application was being prepared, Stevens fully stated the facts to the agent Boak, and the latter came to the conclusion that certificates in co-operative companies did not mean insurance within the view the defendant took of insurance, and in that view wrote the answer that there was no other insurance, then it was the company, by its agent, that made the mistake, and for such mistake the responsibility cannot be placed upon the assured. Again: 'If, therefore, you find under the evidence that Stevens did state fully and fairly the facts in regard to those different insurances in co-operative companies to the agent, and the agent, knowing all these facts, wrote the answer in the application as it is contained therein, the defendant is now estopped from making defense by reason of the fact that Stevens did have insurance in these co-operative companies.' It must be assumed upon the record before us that Boak had authority from the defendant to prosecute the business of soliciting and prosecuting applications for policies; that Stevens acted in good faith, and made to the company's agent a full disclosure of every fact involved in the question as to whether he had other insurance upon his life; that he was informed by the agent that insurance in co-operative societies was not deemed such insurance as the company required to be stated, and that Boak, upon his own responsibility, as agent of the defendant, though with the knowledge and assent of Stevens, wrote the answer, 'No other,' assuring the applicant at the time that such was the proper answer to be made. Is the insurance company estopped, under these circumstances, to dispute its liability upon the policy? This question, the plaintiff insists, must receive an affirmative answer upon the authority of Insurance Co. v. Wilkinson, 13 Wall. 222; Insurance Co. v. Mahone, 21 Wall. 152; and Insurance Co. v. Baker, 94 U. S. 610; while the defendant contends that the case of Insurance Co. v. Fletcher, 117 U. S. 519, 6 Sup. Ct. Rep. 837, requires it to be answered in the negative. An extended statement of those cases is not necessary, and therefore will not serve any useful purpose; for the present case can be determined upon its special facts, and upon grounds that did not exist in any of the others. By the first section of an act of the legislature of Iowa approved March 31, 1880, entitled 'An act relating to insurance and fire insurance companies,' (Laws Iowa 1880, c. 211, p. 209,) it is provided that 'any person who shall hereafter solicit insurance, or procure applications therefor, shall be held to be the soliciting agent of the insurance company or association issuing a policy on such application, or on a renewal thereof, anything in the application or policy to the contrary notwithstanding.' The second section, among other things, requires all insurance companies or associations, upon the issue or renewal of any policy, to attach to the policy, or indorse thereon, a true copy of any application or representations of the assured, which, by the terms of the policy, are made a part thereof, or of the contract of insurance, or are referred to therein, or which may in any manner affect the validity of the policy. The third section relates only to policies of fire insurance. The last clause in the act is in these words: 'All the provisions of this chapter shall apply to and govern all contracts and policies of insurance contemplated in this chapter, anything in the policy or contract to the contrary notwithstanding.' In Cook v. Association, 74 Iowa, 746, 748, 35 N. W. Rep. 500, where the question arose as to the scope of the above statute, the supreme court of Iowa said: 'Considering the title of the act, and all of its provisions, it seems to us to be very clear that it applies in its first and second sections to all kinds of insurance. There can be no doubt that section one applies to any and all classes of insurance, whether life, fire, marine, insurance of live-stock, or any other kind of insurance; and the same may be said of the second section. To hold otherwise would, it seems to us, be inconsistent and repugnant to the title of the act. If all insurance was not contemplated, the title would have been, simply, 'An act relating to fire insurance companies." The object of this legislation is manifest. But if any doubt on the subject existed, it is removed by the case of Insurance Co. v. Shaver, 76 Iowa, 282, 286, 41 N. W. Rep. 19, in which it was said: 'The purpose of the statute was to settle, as between the parties to the contract of insurance, the relation of the agents through whom the negotiations were conducted. Many insurance companies provided in their applications and policies that the agent by whom the application was procured should be regarded as the agent of the insured. Under that provision they were able to avail themselves, in many cases of loss, of defenses which would not have been available if the solicitor had been regarded as their agent, and many cases of apparent hardship and injustice arose under its enforcement, and that is the evil which was intended to be remendied by the statute, and it ought to be so interpreted as to accomplish that result.' This statute was in force at the time the application for the policy in suit was taken, and therefore governs the present case. It dispenses with any inquiry as to whether the application or the policy, either expressly or by necessary implication, made Boak the agent of the assured in taking such application. By force of the statute, he was the agent of the company in soliciting and procuring the application. He could not, by any act of his, shake off the character of agent for the company. Nor could the company by any provision in the application or policy convert him into an agent of the assured. If it could, then the object of the statute would be defeated. In his capacity as agent of the insurance company, he filled up the application,—something that he was not bound to do, but which service, if he chose to render it, was within the scope of his authority as agent. If it be said that, by reason of his signing the application, after it had been prepared, Stevens is to be held as having stipulated that the company should not be bound by his verbal statements and representations to its agent, he did not agree that the writing of the answers to questions contained in the application should be deemed wholly his act, and not, in any sense, the act of the company, by its authorized agent. His act in writing the answer, which is alleged to be untrue, was, under the circumstances, the act of the company. If he had applied in person, at the home office, for insurance, stating in response to the question as to other insurance the same facts communicated by him to Boak, and the company, by its principal officer, having authority in the premises, had then written the answer, 'No other,' telling the applicant that such was the proper answer to be made, it could not be doubted that the company would be estopped to say that insurance in cooperative societies was insurance of the kind to which the question referred, and about which it desired information before consummating the contract. The same result must follow where negotiations for insurance are had, under like circumstances, between the assured and one who in fact, and by force of the law of the state where such negotiations take place, is the agent of the company, and not, in any sense, an agent of the applicant. It is true that among the 'Provisions and Requirements,' printed on the back of the policy, is one to the effect that the contract between the parties is completely set forth in the policy and in the application, and 'none of its terms can be modified nor any forfeiture under it waived except by an agreement in writing signed by the president or secretary of the company, whose authority for this purpose will not be delegated.' But this condition permits—indeed, requires—the court to determine the meaning of the terms embodied in the contract between the parties. The purport of the word 'insurance' in the question, 'Has the said party any other insurance on his life?' is not so absolutely certain as, in an action upon the policy, to preclude proof as to what kind of life insurance the contracting parties had in mind when that question was answered. Such proof does not necessarily contradict the written contract. Consequently, the above clause, printed on the back of the policy, is to be interpreted in the light of the statute, and of the understanding reached between the assured and the company by its agent when the application was completed, namely, that the particular kind of insurance inquired about did not include insurance in co-operative societies. In view of the statute, and of that understanding, upon the faith of which the assured made his application, paid the first premium, and accepted the policy, the company is estopped, by every principle of justice, from saying that its question embraced insurance in cooperative associations. The answer of 'No other,' having been written by its own agent, invested with authority to solicit and procure applications, to deliver policies, and, under certain limitations, to receive premiums, should be held as properly interpreting both the question and the answer as to other insurance. The judgment is affirmed.
130.US.232	No portion of the public domain, unless, it be in special cases, not affecting the general rule, is open to sale until it has been surveyed, and an approved plat of the township embracing the land has been returned to the local land office. A settler upon public land, in advance of the public surveys, acquires no estate in the land which he can devise by will, or which, in case of his death intestate, will pass to his heirs at law, until, within the specified time after the surveys and the return of the township plat, he files a declaratory statement such as is required when the surveys have preceded settlement, and performs the other acts prescribed by law. Section 2269 of the Revised Statutes has no application to the case of a settler who dies before the time arrives when the papers necessary to establish a preemption right can be filed.	This was a suit to charge the defendant Hattie L. Traver as trustee for the plaintiffs of an undivided half interest in certain lands in San Bernardino county, Cal., and was commenced in one of the superior courts of the state. To the complaint the defendants demurred. The demurrer was sustained, and judgment entered that the suit be dismissed. On appeal to the supreme court of the state the judgment was affirmed, (7 Pac. Rep. 450,) and the case is brought to this court on writ of error. The complaint alleges that on the 2d of February, 1870, one Oscar Traver settled upon a quarter section of land in township 2 in San Bernardino county, Cal., and that until his death he lived upon, improved, and cultivated the land; that at the time of his settlement, and continuously until the 1st day of July, 1879, it was public property of the United States, and was unoccupied and unsurveyed and subject to the right of pre-emption; that no approved plat of the township was received at the United States district land-office at Los Angeles, which embraced the land in controversy, until July 1, 1879; that at the time of his settlement, and thereafter until his death, which occurred January 2, 1877, he was a citizen of the United States, and entitled to the benefit of the pre-emption and homestead laws; that he settled upon, improved the land, and erected a building thereon, intending to acquire a title thereto from the United States as soon as he possibly could; that at the time of his settlement he was a single person, and remained so until the 13th of December, 1870, when he intermarried with the defendant, Hattie L. Traver; that on his death he left surviving him his widow and two daughters, Lizzie and Annie, and the three were his only heirs at law; that the daughters have since married and are the plaintiffs in this suit; that the deceased died intestate; and that no administrator of his estate has been appointed. The complaint further alleges that on the 16th of July, 1878, the defendant Hattie L. Traver filed in the United States district land-office at Los Angeles, a pre-emption declaratory statement describing the land, alleging settlement on the 2d of February, 1870, and stating her intention to claim the same under the pre-emption laws of the United States; that soon after the death of Oscar Traver she wrote to the plaintiffs at San Francisco, informing them of the death of their father, and representing that he had not left any property; that this representation was made with intent to deceive them and prevent them from filing the necessary papers to complete his pre-emption and homestead rights; that in December, 1882, they discovered for the first time that she had completed those rights and obtained the patent; that she had lived upon the land and received to her own use its rents and profits since his death, which are stated upon information and belief to be $2,500; that the land is of the value of $1,000 per acre; that the other defendants named claim to have some interest in the land by purchase from her; that such purchase was made with notice of the plaintiffs' rights; and that she denies that they have any rights in the lands, or in the rents, issues, and profits thereof. The praryer of the complaint is that the defendant Hattie L. Traver may be charged as trustee for plaintiffs of an undivided half interest in the lands, and in the rents, issues, and profits thereof, and account for and pay over to them such interest in the rents, issues, and profits; that the other defendants be adjudged to have no interest in the land or in any part thereof; and that the plaintiffs may have such other and further relief as to the court may appear to be just. The entire claim and contention of the plaintiffs rest upon two grounds: (1) That the deceased acquired by his occupation of unsurveyed lands of the United States a right of pre-emption to them under the laws of the United States; and (2) that the plaintiffs, as heirs at law of the deceased, were equally entitled, with his widow, under section 2269 of the Revised Statutes, to the benefit of the patent obtained by her. That section is as follows: 'Where a party entitled to claim the benefits of the pre-emption laws dies before consummating his claim, by filing in due time all the papers essential to the establishment of the same, it shall be competent for the executor or administrator of the estate of such party, or one of the heirs, to file the necessary papers to complete the same; but the entry in such cases shall be made in favor of the heirs of the deceased pre-emptor, and a patent thereon shall cause the title to inure to such heirs, as if their names had been specially mentioned.' Neither of these grounds is well taken. No portion of the public domain, unless it be in special cases not affecting the general rule, is open to sale until it has been surveyed and an approved plat of the township embracing the land has been returned to the local land-office. A settlement upon the public lands in advance of the public surveys is allowed to parties who in good faith intend, when the surveys are made and returned to the local land-office, to apply for their purchase. If, within a specified time after the surveys, and the return of the township plat, the settler takes certain steps,—that is, files a declaratory statement, such as is required when the surveys have preceded settlement, and performs certain other acts prescribed by law,—he acquires for the first time a right of pre-emption to the land; that is, a right to purchase it in preference to others. Until then he has no estate in the land which he can devise by will, or which, in case of his death, will pass to his heirs at law. He has been permitted by the government to occupy a certain portion of public lands, and therefore is not a trespasser, on his statement that when the property is open to sale he intends to take the steps prescribed by law to purchase it, in which case he is to have the preference over others in purchasing; that is, the right to pre-empt it. The United States make no promise to sell him the land, nor do they enter into any contract with him upon the subject. They simply say to him: 'If you wish to settle upon a portion of the public lands, and purchase the title, you can occupy any unsurveyed lands which are vacant and have not been reserved from sale; and, when the public surveys are made and returned, the land not having been in the mean time withdrawn from sale, you can acquire, by pursuing certain steps, the right to purchase them.' If those steps are, from any cause, not taken, the proffer of the government has not been accepted, and a title in the occupant is not even initiated. The title to the land remains unaffected, and subject to the control and disposition of the government, as before his occupancy. This doctrine has been long established in this court. Thus, in Frisbie v. Whitney, 9 Wall. 187, 193, where the subject was fully considered, it was held that occupation and improvement on the public lands, with a view to pre-emption, did not confer a vested right in the land so occupied. Speaking of the settlement in that case, the court, by Mr. Justice MILLER, said: 'So far as anything done by him is to be considered, his claim rests solely upon his going upon the land and building and residing on it. There is nothing in the essential nature of these acts to confer a vested right, or, indeed, any kind of claim to land, and it is necessary to resort to the pre-emption law to make out any shadow of such right.' The same doctrine was affirmed in the Yosemite Valley Case, 15 Wall. 77, the court observing that until all the preliminary steps to the acquisition of the title of the United States, prescribed by law, have been complied with, the settler has not acquired any title against the United States. Among these are the entry of the land at the appropriate land-office and the payment of its price. 'Until such payment and entry,' the court added, 'the acts of congress give to the settler only a privilege of pre-emption in case the lands are offered for sale in the usual manner; that is, the privilege to purchase them in that event, in preference to others. The United States by those acts enter into no contract with the settler, and incur no obligation to any one that the land occupied by him shall ever be put up for sale. They simply declare that, in case any of their lands are thrown open for sale, the privilege to purchase them in limited quantities, at fixed prices, shall be first given to parties who have settled upon and improved them.' Nothing was done in this case by the deceased occupant beyond his occupancy, and therefore nothing to initiate a title in him; not even the privilege of purchasing the land was acquired by him. His death occurred two years before the surveys were made and returned. Section 2269 of the Revised Statutes, upon which the plaintiffs rely, has no application to the case presented by them. That section was taken from section 2 of the act of March 3, 1843, (5 St. 620,) 'to authorize the investigation of alleged frauds under the pre-emption laws, and for other purposes.' At that time no settlement on unsurveyed lands was permitted by the laws of the United States, and the second section was intended to secure to the heirs of the deceased pre-emptor a claim to the benefit of the pre-emption laws, which he had initiated, but not completed before his death, 'by filing in due time all the papers essential to the establishment of the same.' His executor or administrator, or one of his heirs, was in that event allowed to file such papers. No claim of the deceased in this case was lost by any failure to file the necessary papers. The time for any papers to be filed did not arrive during his life. The contention of the plaintiffs in error is that the section, upon a correct construction, extends to heirs of a deceased occupant of unsurveyed public land of the United States, who during his life did nothing beyond its occupation and improvement, the same rights which are conferred upon heirs of a person entitled at the time of his death to the benefits of the pre-emption laws. It is upon the supposed denial of such rights to the plaintiffs by the court below that the jurisdiction of this court is invoked; it is upon that denial alone that the jurisdiction can be maintained. What we have said as to the legal effect of the deceased's occupation and improvement shows that no title was initiated or right of pre-emption created by them, and of course nothing was left by the deceased to be completed by his heirs, and hence there was no denial of any rights to them under the statute, as claimed. Judgment affirmed.
132.US.357	So long as a homestead entry, valid upon its face, remains a subsisting entry of record whose legality has been passed upon by the land authorities, and their action remains unreversed, it is such an appropriation of the tract as segregates it from the public domain, and precludes it from a subsequent grant by Congress. A defect in a homestead entry on public land in Minnesota made by a soldier in active service in Virginia during the war, caused by want of the requisite residence on it, was cured by the act of June 8, 1872 " to amend an Act relating to Soldiers' and Sailors' Homesteads," 17 Stat. 333, c. 338, § 1 (Rev Stat. § 2308). While the decisions of the Land Department on matters of law are not binding on tls court, they are entitled to great respect.	This is an action, somewhat in the nature of a suit in equity, originally brought in the district court of Ramsey county, Minn., by the Hastings & Dakota Railroad Company, (a corporation organized under t e laws of that state,) against Julia D. and John Whitney, to recover a tract of about 80 acres of land situated in that county, for which the defendants have a United States patent. The material facts in the case are undisputed, and are substantially as follows: By the act of July 4, 1866, congress granted to the state of Minnesota, for the purpose of aiding in the construction of a railroad from Hastings, through the counties of Dakota, Scott, Carver, and McLeod, to such point on the western boundary of the state as the legislature of the state might determine, every alternate section of land, designated by odd numbers, to the amount of five alternate sections per mile on each side of the road. The act further provided that 'in case it shall appear that the United States have, when the lines or route of said roads are definitely located, sold any section, or part thereof, granted as aforesaid, or that the right of pre-emption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the secretary of the interior to cause to be selected, for the purposes aforesaid, from the public lands of the United States nearest to the tiers of sections above specified, so much land in alternate sections or parts of sections, designated by odd numbers, as shall be equal to such lands as the United States have sold, reserved, or otherwise appropriated, or to which the right of homestead settlement or pre-emption has attached as aforesaid, which lands, thus indicated by odd numbers and sections, by the direction of the secretary of the interior, shall be held by said state of Minnesota for the purposes and uses aforesaid.' 14 St. 87. On the 7th of March, 1867, the legislature of Minnesota accepted this grant, and transferred it over to the plaintiff. The railroad company complied with all the terms and conditions of the acts of congress, and of the legislature of the state of Minnesota, and on or about the 7th of March, 1867, definitely located its line of road by filing its map in the office of the commissioner of the general land-office. The land which is the subject of this controversy fell within what are known as the 10-mile limits of the aforesaid grant, when the line of road was definitely located. The case being brought on for trial on evidence produced by the respective parties, the court made and filed its findings of fact and conclusions of law, the essential parts of which are as follows: 'Claiming to act under the provisions of section 2293 of the Revised Statutes of the United States, one Bentley S. Turner, on the 8th of May, 1865, then being a soldier in the army of the United States, and actually with his regiment in the of Virginia, made an affidavit, and caused the same to be filed in the local land-office of the district wherein said land was situate. Said affidavit was made before his commanding officer in the state of Virginia, and stated that said Turner was the head of a family, a citizen of the United States, and a resident of Franklin county, N. Y. Application was made through one Conwell, whom said Turner constituted his attorney for that purpose, upon said affidavit, to enter said land as a homestead. Said affidavit did not state that Turner's family, or any member thereof, was residing on the land, or that there was any improvement thereon and, as a matter of fact, no member of his family was then residing, or ever did reside, on said land, and no improvement whatever had ever been made thereon by any one. Thereupon, upon being paid their fees by said Conwell, the register and receiver of said land-office allowed said entry, and the same stood upon the records of said local land-office and upon the records of the general land-office uncanceled until September 30, 1872, when said entry was canceled by the proper officers of the United States. It does not appear that any specific reason was assigned for said cancellation, nor does the reaso for said cancellation appear, save as it may be furnished by the facts aforesaid. On the 7th day of May, 1877, without notice to the plaintiff, the defendant Julia D. Whitney, then a single woman, by name Julia D. Graham, who has since intermarried with said defendant John Whitney, did enter said land at the local land-office as a homestead, and thereafter, in the usual course of business, the officers in charge of the general land-office of the United States caused a patent of the United States for said land to be issued in due form, and delivered to said defendant Julia, who ever since May 7, 1877, has been and now is in the actual occupancy of said premises, holding the same under said patent. Said land is of the value of six hundred dollars, ($600.)' After making these findings of fact, and holding as a conclusion of law that the alleged entry of Turner was absolutely void, that the title to the land in dispute was, under the land grant to the state, vested in the plaintiff, and that the entry of Julia D. Whitney thereon was unauthorized and of no effect, the court entered a decree in favor of the plaintiff in error. On an appeal by the defendant to the supreme court of the state that decree was reversed, without any order for a new trial. Such reversal, under the laws of Minnesota, is, in effect, the final judgment of the highest court of that state in which a decision of the cause could be had, and the case has been brought here by a writ of error. Section 1 of the act of March 21, 1864, (13 St. 35,) now section 2293 of the Revised Statutes, under which Turner's homestead entry was made, provides as follows: 'In case of any person desirous of availing himself of the benefits of this chapter, but who, by reason of actual service in the military or naval service of the United States, is unable to do the personal preliminary acts of the district land-office which the preceding sections require, and whose family, or some member thereof, is residing on the land which he desires to enter, and upon which a bona fide improvement and settlement have been made, such person may make the affidavit required by law before the officer commanding in the branch of the service in which the party is engaged, which affidavit shall be as binding in law, and with like penalties, as if taken before the register or receiver; and, upon such affidavit being filed with the register by the wife or other representative of the party, the same shall become effective from the date of such filing, provided the application and affidavit are accompanied by the fee and commissions as required by law.' The question presented for our consideration is whether, upon the facts found and admitted, the homestead entry of Turner upon the land in controversy excepted it from the operation of the land grant under which plaintiff in error claims title. The doctrine first announced in Wilcox v. Jackson, 13 Pet. 498, that a tract lawfully appropriated to any purpose becomes thereafter severed from the mass of public lands, and that no subsequent law or proclamation will be construed to embrace it, or to operate upon it, although no exception be made of it, has been reaffirmed and applied by this court in such a great number and variety of cases that it may now be regarded as one of the fundamental principles underlying the land system of this country. In Witherspoon v. Duncan, 4 Wall. 210, this court decided, in accordance with the decision in Carroll v. Safford, 3 How. 441, that 'lands originally public cease to be public after they have been entered at the land-office, and a certificate of entry has been obtained;' and the court further held that this applies as well to homestead and pre-emption as to cash entries. In either case, the entry being made, and the certificate being executed and delivered, the particular land entered thereby becomes segregated from the mass of public lands, and takes the character of private property. The fact that such an entry may not be confirmed by the land-office on account of any alleged defect therein, or may be canceled or declared forfeited on account of noncompliance with the law, or even declared void, after a patent has issued, on account of fraud, in a direct proceeding for that purpose in the courts, is an incident inherent in all entries of the public lands. In the light of these decisions, the almost uniform practice of the department has been to regard land, upon which an entry of record valid upon its face has been made, as appropriated and withdrawn from subsequent homestead entry, pre-emption settlement, sale, or grant until the original entry be canceled or declared forfeited; in which case the land reverts to the government as a part of the public domain, and becomes again subject to entry under the land laws. The correctness of this holding has been sustained by this court in the case of Railway Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. Rep. 566, and the principle applied to a railroad grant act, which contained the same exceptions as those embodied in the act under which the plaintiff in error claims title to the tract in controversy. In that case a homestead claim had been made and filed in the land-office by one Miller, and there recognized by a certificate of entry, before the line of the company's road was located. Subsequently to the location he abandoned his entry, and took a title under the railroad company, and his homestead entry was canceled. One G. B. Dunmeyer then entered the land under the homestead law, claiming that, by the cancellation for abandonment, it had passed back into the mass of public lands, and was not brought within the grant; and upon that claim ousted the defendant in error, who afterwards brought his action against the railroad company for a breach of covenant, obtaining a judgment in the court below, which was afterwards affirmed by this court. The court said, Mr. Justice MILLER delivering its opinion: 'The record shows that on July 25, 1866, Miller made a homestead entry on this land which was in every respect valid. * * * It also shows that the line of definite location of the company's road was first filed * * * September 21, 1866. * * * In the language of the act of congress, this homestead claim had attached to the land, and it therefore did not pass by the grant. Of all the words in the English language, this word 'attached' was probably the best that could have been used. It did not mean mere settlement, residence, or cultivation of the land, but it meant a proceeding in the proper land-office, by which the inchoate right to the land was initiated. It meant that by such a proceeding a right of homestead had fastened to that land, which could ripen into a perfect title by future residence and cultivation. With the performance of these conditions the company had nothing to do.' 'It is argued by the company that, although Miller's homestead entry had attached to the land, within the meaning of the excepting clause of the grant, before the line of definite location was filed by it, yet when Miller abandoned his claim, so that it no longer existed, the exception no longer operated, and the land reverted to the company; that the grant by its inherent force reasserted itself, and exended to or covered the land as though it had never been within the exception. We are unable to perceive the force of this proposition. * * * No attempt has ever been made to include lands reserved to the United States, which reservation afterwards ceased to exist, within the grant, though this road, and others with grants in similar language, have more than once passed through military reservations for forts and other purposes, which have been given up or abandoned as such reservations, and were of great value. Nor is it understood that, in any case where lands had been otherwise disposed of, their reversion to the government brought them within the grant. Why should a different construction apply to lands to which a homestead or pre-emption right had attached? Did congress intend to pay that the right of the company also attaches, and whichever proved to be the better right obtained the land?' Counsel for plaintiff in error contends that the case just cited has no application to the one we are now considering, the difference being that in that case the entry existing at the time of the location of the road was an entry valid in all respects, while the entry in this case was invalid on its face, and in its inception; and that this entry, having been made by an agent of the applicant, and based upon an affidavit which failed to show the settlement and improvement required by law, was, on its face, not such a proceeding, in the proper land-office, as could attach even an inchoate right to the land. We do not think this contention can be maintained. Under the homestead law three things are needed to be done in order to constitute an entry on public lands: First, the applicant must make an affidavit setting forth the facts which entitle him to make such an entry; second, he must make a formal application; and, third, he must make payment of the money required. When these three requisites are complied with, and the certificate of entry is executed and delivered to him, the entry is made,—the land is entered. If either one of these integral parts of an entry is defective,—that is, if the affidavit be insufficient in its showing, or if the application itself is informal, or if the payment is not made in actual cash,—the register and receiver are justified in rejecting the application. But if, notwithstanding these defects, the application is allowed by the land-officers, and a certificate of entry is delivered to the applicant, and the entry is made of record, such entry may be afterwards canceled on account of these defects by the commissioner, or on appeal by the secretary of the interior; or, as is often the practice, the entry may be suspended, a hearing ordered, and the party notified to show by supplemental proof a full compliance with the requirements of the department, and, on failure to do so, the entry may then be canceled. But these defects, whether they be of form or substance, by no means render the entry absolutely a nullity. So long as it remains a subsisting entry of record, whose legality has been passed upon by the land authorities, and their action remains unreversed, it is such an appropriation of the tract as segregates it from the public domain, and therefore precludes it from subsequent grants. In the case before us, at the time of the location of the company's road an examination of the tract-books and the plat filed in the office of the register and receiver, or in the land-office, would have disclosed Turner's entry as an entry of record, accepted by the proper officers in the proper office, together with the application and necessary money,—an entry the imperfections and defects of which could have been cured by a supplemental affidavit or by other proof of the requisite qualifications of the applicant. Such an entry attached to the land a right which the road cannot dispute for any supposed failure of the entryman to comply with all the provisions of the law under which he made his claim. A practice of allowing such contests would be fraught with the gravest dangers to actual settlers, and would be subversive of the principles upon which the munificent railroad grants are based. As was said in the Dunmeyer Case, supra: 'It is not conceivable that congress intended to place these parties [homestead and pre-emption claimants on the one hand, and the railway company on the other] as contestants for the land, with the right in each to require proof from the other of complete performance of its obligation. Least of all is it to be supposed that it was intended to raise up, in antagonism to all the actual settlers on the soil, whom it had invited to its occupation, this great corporation, with an interest to defeat their claims, and to come between them and the government as to the performance of their obligations.' A question somewhat analogous, in principle, to the one in this case, arose in Newhall v. Sanger, 92 U.S. 761. In that case, Newhall claimed under a patent issued to the Western Pacific Railroad Company, for land supposed to be within the grant made by the act of July 1, 1862, (12 St. 489,) and that of July 2, 1864, (13 St. 356,) and Sanger claimed under a subsequent patent which recited, among other things, that the former patent had been erroneously issued. The land in controversy had been within the boundaries of a claim made under a Mexican grant, which was pending in the land department of the United States at the time the order withdrawing the railroad lands from entry was made. The Mexican claim was rejected a few days thereafter because of its fraudulent character. Under that state of facts, the contention of the railroad company was that, the Mexican claim having been declared in valid, the land in controversy became subject to the operation of the granting acts, and therefore passed to the company. But this court declared otherwise, and held that the land never became subject to the grant, and that the claimant under the second patent had the better title. In addition to this, section 2308 of the Revised Statutes provides: 'Where a party at the date of his entry of a tract of land under the homestead laws, or subsequently thereto, was actually enlisted and employed in the army or navy of the United States, his services therein shall, in the administration of such homestead laws, be construed to be equivalent, to all intents and purposes, to a residence for the same length of time upon the tract so entered,' etc. That act is a curative act, or, rather, one putting a construction upon the prior act of 1864, under which the Turner entry was made. The effect of it is to declare service in the army or navy of the United States by the applicant, at the date of an entry made under the act of 1864, equivalent to actual residence upon the land by him. In that view of the case the affidavit in the Turner entry was sufficient; for, in contemplation of law, he was then residing upon the tract embraced in his entry. The conclusion at which we have arrived is in harmony with the later rulings of the land department. See Graham v. Railroad Co., (this case,) 1 Dec. Dep. Int. 382; Railway Co. v. Forseth, 3 Dec. Dep. Int. 446; Extension Co. v. Gallipean, Id. 166; Railway Co. v. U. S., Id. 479; Railway Co. v. Leech, Id. 506; Railway Co. v. Whitnall, 4 Dec. Dep. Int. 249; and many others of like tenor and effect. It is true that the decisions of the land department on matters of law are not binding upon this court, in any sense. But on questions similar to the one involved in this case they are entitled to great respect at the hands of any court. In U. S. v. Moore, 95 U. S. 760, 763, this court said: 'The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration, and ought not to be overruled without cogent reasons. * * * The officers concerned are usually able men, and masters of the subject. Not unfrequently they are the draughtsmen of the laws they are afterwards called upon to interpret.' See, also, Brown v. U.S., 113 U. S. 568, 571, 5 Sup. Ct. Rep. 648, and cases there cited; U. S. v. Railroad Co., 98 U. S. 334, 341; Railroad Co. v. Railroad Co., 112 U. S. 414, 418, 5 Sup. Ct. Rep. 208. Other subsidiary questions have been argued by counsel for plaintiff in error, but they are all virtually disposed of in the foregoing. For the foregoing reasons we concur with the court below that Turner's homestead entry excepted the land from the operation of the railroad grant; and that upon the cancellation of that entry the tract in question did not inure to the benefit of the company, but reverted to the government, and became a part of the public domain, subject to appropriation by the first legal applicant, who, as the record shows, was the defendant in error Julia D. Whitney, n ee raham. The decree of the supreme court of Minnesota is affirmed.
132.US.415	The right of action of a plaintiff under a title derived from an assignee in bankruptcy, to redeem from a sale under a deed of trust, was held in this case to be barred by the two years' limitation contained m § 5057 of the Revised Statutes. That section does not apply only to a suit to which the assignee in bankruptcy is a party; but it applies to a case where nearly a year of the two years had run against the right while the assignee owned it, after his appointment, and the rest of the two years ran against it in the hands of the plaintiff, his transferee, so that more than two years elapsed between such appointment and the bringing of the suit to redeem, and the property covered by the trust deed was held adversely by the defendant, under a sale under the trust deed, for more than two years before the bringing of that suit. On the facts of this case there was no fraudulent concealment by the defendants from the assignee in bankruptcy or the plaintiff. Sufficient information as to the trust deed, and its contents, was given in the bankruptcy schedule, filed more than eleven months before the assignee was appointed, and more than one month before the sale under the trust deed, to put the assignee in bankruptcy and the plaintiff on inquiry. Moreover it appeared that, two days before the sale under the deed of trust, the plaintiff knew of the contents of the schedule in bankruptcy and who held the debt secured by the deed of trust. The plaintiff having, by a petition to the bankruptcy court, procured the sale of the property by the assignee in bankruptcy, and the application of its proceeds on the debt on which his suit to redeem was founded, waived any right to redeem arising under a judgment before recovered by hn for his debt.	The plaintiffs claim a right to redeem from the sale to Greene, made by Peabody as trustee, or from the trustee under which that sale was made, on payment of the mortgage debt, (1) as owners of Robertson's equity of redemption by virtue of their purchase from the assignee in bankruptcy; and (2) as judgment creditors of Robertson, having a lien on the property by virtue of their judgment, prior in time to the sale by Peabody as trustee, and by their purchase of the property at the sale under the execution issued on their judgment. They rest their claim under their purchase from the assignee in bankruptcy—First, on the ground that the sale by Peabody, as trustee, was made after the commencement of the proceedings in bankruptcy, and after the adjudication thereon, before an assignee was appointed, and without leave of the bankruptcy court, and was void as against such assignee and those claiming under him, that the property was still subject to the right of redemption by the assignee, and that such right has been conveyed by him to the plaintiffs; second, on the ground that there was a collusive agreement made with Robertson by Peabody, as agent for Greene, giving to Robertson the right to redeem from the sale by Peabody, and that such right of redemption passed from Robertson to his assignee in bankruptcy, and from the latter to the plaintiffs. The claim of the plaintiffs to redeem, as judgment creditors of Robertson, is based on the allegation that they were led by the wrongful conduct of the defendants to believe that the property was subject to the deed of trust to Gallup, as well as to that to Peabody; that they were not allowed an opportunity to pay off the incumbrance before the sale by Peabody, although they were ready and willing to do so; that, by reason of the collusive agreement referred to, the sale by Peabody was part of a scheme to hinder them in collecting their judgment, by cutting off their lien on Robertson's equity of redemption, and giving the property back to him, after he should have been discharged in bankruptcy from the judgment; that the sale by Peabody was not properly advertised; that the plaintiffs had no notice of such sale prior to its being made; that such notice was intentionally withheld from them; that the sale by eabody, with the prior incumbrance of the trust-deed to Gallup, apparently standing against the property, when such incumbrance had been paid, was made with a view to prevent competition in bidding at the sale; that the property was sold in bulk, and not offered for sale in parcels; and that it was sold for an inadequate price. But we do not find it necessary to consider any of these questions, because we are of opinion that the right of action of the plaintiffs, under their title derived from the assignee in bankruptcy, was barred by the bankruptcy statute. Section enacted by the bankruptcy statute. Section 5057 of the Revised Statutes provides as follows: 'No suit, either at law or in equity, shall be maintainable in any court between an assignee in bankruptcy and a person claiming an adverse interest, touching any property, or rights of property, transferable to, or vested in, such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee.' It is contended for the plaintiffs that the limitation provided by section 5057 applies only to the case of a contest between an assignee in bankruptcy and a person claiming an interest adversely to such assignee, touching property of the bankrupt, in a suit to which the assignee is a party; that when the assignee transferred his rights to Pratt, who acted for the plaintiffs, on the 17th of June, 1880, under the sale to Pratt made on the 24th of April, 1880, the statute ceased to run, and the interest which thus passed from the assignee then ceased to be within the terms of the bankruptcy statute of limitation, and became subject to the ordinary statute of limitation, and that the two-years limitation had not run on the 24th of April, 1880, or on the 17th of June, 1880; the register's deed to the assignee in bankruptcy having been made on the 24th of July, 1879. But we are of opinion that the right which passed to the assignee, to file a bill to redeem, began to exist on the 24th of July, 1879; that, as the bankruptcy statute of limitation began then to run against such right in the hands of the assignee, it continued to run after such right passed to the plaintiffs, by the assignee's deed to Pratt on their behalf, of June 17, 1880, made in pursuance of the sale of April 24, 1880; that the two-years statute of limitation bars the right asserted by the plaintiffs in their bill, in like manner as it would have barred the right of the assignee to redeem, if he had never made any sale or conveyance to Pratt, and if he were now the plaintiff in this suit; that the suit cannot beregarded as having been brought against the widow, heirs, and representatives of David R. Greene, until the supplemental bill was filed, on the 17th of September, 1881, when, for the first time, the sale by Peabody, as trustee, to Greene was drawn in question in this suit; and that, as more than two years elapsed between July 24, 1879, and September 17, 1881, the two-years bar of the statute is complete. That the two-years bar of the statute applies in favor of a purchaser from an assignee in bankruptcy has been decided by this court. In Gifford v. Helms, 98 U. S. 248, the assignee in bankruptcy was appointed in May, 1868, and sold all the assets of the bankrupt to the plaintiff in May, 1871. Afterwards the plaintiff brought suit to set aside an alleged fraudulent conveyance which had been made by the bankrupt in June, 1867. It was held that, as the right of action on the part of the assignee in bankruptcy was barred in May, 1871, it was barred as against the plaintiff. This could not have been held if the two-years statute of limitation had been regarded as one applying only in a suit brought by the assignee. It was said by the court that, if the conveyance sought to be impeached was made in fraud of creditors, the equities in controversy were vested in the assignee in bankruptcy when he was appointed, and his right of action commenced at the time the assignment was made to him, and he might have pursue such right at any time thereafter; that, as the plaintiff claimed as purchaser from the assignee, he did not acquire, under the sale made to him by the assignee, any greater rights than those possessed by the latter; that those rights were acquired by the assignee in May, 1868; that throughout the period intervening between that date and May, 1871, the equities in controversy were held by the defendant adversely to the supposed right of the assignee; and that the right, if any, of the assignee, was barred by the two-years statute of limitation before the purchase by the plaintiff. In Wisner v. Brown, 122 U. S. 214, 7 Sup. Ct. Rep. 1156, it was held that an assignee in bankruptcy cannot transfer to a purchaser the bankrupt's adverse interest in real estate in the possession of another claiming title to it, if two years have elapsed from the time when the cause of action therefor accrued to the assignee; and that the right of the purchaser in such case is as fully barred by the bankruptcy statute of limitation as is that of the assignee. In that case the suit was brought by a person who had purchased property of the estate from the assignee in bankruptcy, and received a conveyance thereof, more than seven years after the title of the assignee accrued. The defendants pleaded the two-years bankruptcy statute of limitations. At the time of the appointment of the assignee the property sued for was held adversely by the defendants. The court held that the assignee could not, after two years from the time of his appointment had expired, himself bring an action to recover the property, or, by selling the lands to a third person after such time had expired, enable the latter to maintain an action therefor; and it quotes with approval the remark made in Gifford v. Helms, supra, that the purchaser from the assignee did not acquire by his purchase any greater rights than those possessed by the latter. These cases show that a conveyance by the assignee in bankruptcy cannot prevent the operation of the bar of the statute against the grantee, when it has already run against the assignee, or bring into action a new period of limitation, dating from the time of the conveyance. Nor can it interrupt the running of the statute against the claim or right, when it has once commenced to run as against the assignee. The purchaser takes the right cum onere, subject to the continuance of the running of the statute, and subject to the fact that a part of the two years has already run as against the claim or right, while it was in the hands of the assignee, and to the consequence that when sufficient additional time shall have run against it, in the hands of the purchaser, to make up the entire two years, the claim or right will be wholly barred. No initiation of a new period of limitation, under any statute, begins to run in favor of the purchaser at the time of his purchase, whether the two years wholly elapsed, or only a part thereof elapsed, while the claim was owned by the assignee. But the plaintiffs seek to take the case out of the bar of the statute by alleging that they were ignorant of their rights, and did not discover the facts relating to the sale by Peabody as trustee, and the other matters set up in their supplemental bill, until the 24th of April, 1880, which was within two years of September 17, 1881; and that the sale by Peabody was kept secret by the defendants, as far as possible, although the plaintiffs used diligence to discover the facts. Even if the allegations in the supplemental bill and in the amendments thereto be regarded as sufficiently charging a graudulent concealment by the defendants of the facts of the case from the assignee in bankruptcy, or from Pratt, or from the plaintiffs, we do not think the evidence establishes any such fraudulent concealment. With the petition in bankruptcy, filed August 31, 1878, there was filed a schedule naming the creditors of Robertson holding securities, giving the name of David R. Greene as one of such creditors, his place of re idence, the date of the contracting of his debt, its amount, a statement that the security was a trust-deed on property in Chicago, a description of such property, the street and number where it was situated, and the name of Peabody as trustee. It also disclosed the fact that the only incumbrance on the property was the trust-deed to Peabody, thus excluding the idea that the trust-deed to Gallup was in force. Here was information, accessible to the assignee in bankruptcy when he was appointed, information which he was bound to take notice of, information equally accessible to the plaintiffs, being in a public record, which information referred the assignee and the plaintiffs to David R. Greene for full particulars as to the property in question, and the transactions in regard to the trust-deed. The petition in bankruptcy was filed 37 days before the sale of the property to Greene by Peabody as trustee. Moreover, in the petition of the plaintiffs, filed in the bankruptcy court October 5, 1878, 2 days before the sale by Peabody, and sworn to by the agent of the plaintiffs, the contents of the schedules in bankruptcy of Robertson are referred to, and it is stated that among the assets set forth in such schedules is the property in question, identifying it. This shows that information was actually had by such agent, at that time, of the facts before set forth as contained in one of such schedules, as to the particulars of the trust-deed to Peabody, and as to who was the holder of the note secured by it, and where he resided. That petition was filed more than nine months before the assignee in bankruptcy was appointed. The rights of the plaintiffs must depend wholly upon such right of redemption as existed in Robertson, and passed to his assignee in bankruptcy, and from the latter to the plaintiffs. That being extinguished, no other right exists, and the plaintiffs have no right to redeem through any separate title acquired under their judgment against Robertson. They did not become, by the recovery of their judgment, or by anything done under it, the successors of Robertson in respect of any right of redemption, but they must follow and acquire their only title to such right through the assignee in bankruptcy. Moreover, whatever right to redeem they could have acquired by virtue of their judgment was waived by them by their petition of March 25, 1880, to the bankruptcy court, and by their procuring the property in question to be sold by the assignee in bankruptcy, and its proceeds to be applied on their judgment. At their own suggestion, the equity of redemption, which was sold by the assignee, was thus put beyond their reach. The result of these views is that the decree of the circuit court must be reversed, and the case be remanded to that court, with a direction to enter a decree dismissing the bill, with costs.
131.US.397	Under the circumstances set forth in the motion papers below, the court, as to so much of the record as was printed by order of the court below, dispenses with the filing of ten of the twenty-five copies required by Rule 10 to be printed for the use of the court and counsel, and remits the clerk's fees for supervision of printing.	On consideration of the motion for leave to furnish 15 copies of the record as already printed, and for a remission of the clerk's fees for supervising the printing, it is now here ordered by the court that upon the appellants' filing 15 copies of the record, as already printed, and making payment of $100, as for cost of additional printing required, the balance of the estimated costs be remitted.
130.US.69	If the trial court makes the decision of a motion for a new trial depend upon a remission of the larger part of the verdict, this is not a re-examination by the court of facts tried by the jury in a mode not known at the common law; and is no violation of the Seventh Article of Amendment to the Constitution. An order overruling a motion for a new trial after the plaintiff, by leave of court, has remitted a part of the verdict, is not subject to review by this court upon a writ of error sued out by the party against whom the verdict is rendered. A recital in an instrument between two parties that one party, the owner of a great number of cattle, had, on the day of its execution, " sold" the cattle to the other party, followed by clauses guaranteeing the title, and providing the mode in which the buyer was to make payment, contains all the elements of an actual sale, as distinguished from an executory contract. A provision in a bill of sale of cattle, that the seller shall retain possession until, and as security for, the payment of the price, is not inconsistent with an actual sale, by which title passes to the buyer. In trover for the conversion of cattle the plaintiff, proving his case, is entitled to recover for the value of such calves, the increase of the cows, as were in existence at the time of the demand and conversion. In trover for the conversion of cattle intended for consumption, the plaintiff, if he recover, is entitled to interest on the value of the cattle at the legal rate of the place of the conversion.	This is an action for the recovery of damages for the alleged unlawful conversion by the defendant, the Arkansas Valley Land and Cattle Company (Limited), to is own use, of certain cattle. The complaint, which is framed in conformity with the local law, contains three distinct causes of action. The first count claims seventy-one thousand dollars in damages for the unlawful conversion, at the county of Weld, Colorado, of fourteen hundred and fifty-two head of Oregon cattle, all branded on the right side or loin with what is commonly known as the bar brand, and of which seven hundred and forty-two were steers, alleged to be of the value of forty-four thousand five hundred and twenty dollars, and seven hundred cows, alleged to be of the value of twenty-one thousand dollars. The second count claims eight thousand dollars in damages for the conversion by the defendant of one thousand and thirty-six Oregon steers, alleged to be of the value of sixty-two thousand dollars, and marked, among other brands, with the letter "T" on the left side, which cattle R. T. Kelly, A. J. Gillespie, T. E. Gillespie, Louis J. Gillespie, J. F. Gillespie, and G.O. Keck once owned, but their claim for damages, on account of said conversion, had been assigned, transferred and set over to the plaintiff. The third count claims seventy-one thousand dollars in damages for the conversion of seven hundred head of Oregon cows and twelve bulls, of the alleged value of twenty-one thousand dollars, and fifteen hundred head of young cattle, the increase of the cows last mentioned, and of the actual value of fifty thousand dollars. Judgment is asked upon all the counts for the sum of two hundred and twenty-one thousand dollars. There was evidence relating to a herd of about two thousand steers and cows of various ages, all branded, which the plaintiff claimed to have bought from Slagle and Jordan in October, 1880. His contention is that at the time of the purchase that herd was at or near Rock Creek Station on the Union Pacific Railroad, in the Territory of Wyoming; that under an arrangement, part of his contract of purchase, he caused to be shipped, out of this herd, to Omaha or Council Bluffs for sale at prices fixed by that contract, about six hundred head; that the remainder, about fourteen hundred in number, were driven, in the same month, to Sheep Creek Basin, about twenty miles distant from Rock Creek; that in December they fled or drifted before a severe wind and snow-storm from the west and northwest, until they came to the head of Sheep Creek Basin, thence passed over the Black Hills Range and moved in an easterly and southerly direction until they reached the ranch of one Bloomfield, in Colorado, and were by him taken possession of, without right, and sold to the defendant, a corporation of which he was general manager. There was evidence as to another herd of about 1200 steers, marked with a T brand on the left side, and belonging to Gillespie & Co., which disappeared about the same time from the same region in Wyoming Territory. This herd, it was claimed, also found its way to Bloomfield's ranch, and were by him sold without right to the defendant. Early in the year 1884, the complainant made demand upon the defendant, through Bloomfield, as its manager, for the above cattle, including those formerly owned by Gillespie & Co., to whose rights the plaintiff had succeeded. The demand was refused upon the ground that the defendant had not received any cattle belonging to the plaintiff. The answer put in issue the plaintiff's ownership of the cattle described in the complaint, and relied also upon certain facts in bar of any recovery against the defendant. The plaintiff filed a replication controverting all the new matters set out in the answer. After a protracted trial, the jury returned a verdict in favor of the plaintiff for the sum of $39,958.33. There was a motion by the defendant for a new trial, as well as one in arrest of judgment. The court decided that if the plaintiff would remit the sum of twenty-two thousand eight hundred and thirty-three dollars and thirty-three cents from the amount of the verdict, the motion for a new trial should be denied; but if he declined to do so, a new trial should be granted. In accordance with this decision, the plaintiff remitted the above sum, and stipulated in writing that judgment might be entered for the sum of $17,125. The motion for a new trial, and the motion in arrest of judgment, were overruled, and judgment was entered for the latter sum. To the action of the court in respect to this remission, and to the order denying the motions for new trial and in arrest of judgment, the defendant excepted. 1. The point was much pressed at the bar that the remission by the plaintiff of a part of the verdict, followed by a judgment for the sum remaining, deprived the defendant of his constitutional right to have the question of damages tried by a jury, without interference upon the part of the court, except as it became necessary to instruct them in reference to the principles of law governing the determination of that question. The precise contention is that to make the decision of the motion for a new trial depend upon a remission of part of the verdict is, in effect, a re-examination by the court, in a mode not known at the common law, of facts tried by the jury and therefore was a violation of the seventh amendment of the constitution. The counsel for the defendant admits that the views expressed by him are in conflict with the decision in Railroad Co. v. Herbert, 116 U. S. 642, 646, 6 Sup. Ct. Rep. 590, but he asks that the question be re-examined in the light of the authorities. That was an action against a railroad company for the recovery of damages resulting from the negligence of its representative, whereby the plaintiff sustained serious personal injury. The verdict was for $25,000, and a new trial was ordered, unless the plaintiff remitted $15,000 of the verdict. He did remit that sum, and judgment was entered for $10,000. This court said: 'The exaction, as a condition of refusing a new trial, that the plaintiff should remit a portion of the amount awarded by the verdict, was a matter within the discretion of the court. It held that the amount found was excessive, but that no error had been committed on the trial. In requiring the remission of what was deemed excessive, it did nothing more than require the relinquishment of so much of the damages as, in its opinion, the jury had improperly awarded. The corrected verdict could therefore be properly allowed to stand;' citing Blunt v. Little, 3 Mason, 102, 106; Hayden v. Machine Co., 54 N. Y. 221, 225; and Doyle v. Dixon, 97 Mass. 208, 213. In Blunt v. Little, which was an action for malicious civil prosecution, in which the verdict was for $2,000, Mr. Justice STORY, while admitting that the exercise of the discretion of the court to disturb the verdict of the jury was full of delicacy and difficulty, recognized it to be a duty to interfere, when it clearly appeared that the jury had committed a gross error, or acted from improper motives, or had given damages that were excessive in relation either to the person or the injury, and held that the cause then before him should be submitted to another jury unless the plaintiff remitted $500 of the damages. The remission was made and the new trial refused. In Doyle v. Dixon, which was an action for breach of contract, the language of the court was: 'When the damages awarded by the jury appear to the judge to be excessive, he may either grant a new trial absolutely, or give the plaintiff the option to remit the excess, or a portion thereof, and order the verdict to stand for the residue.' To the same effect are many other cases. Guerry v. Kerton, 2 Rich. Law, 507, 512; Young v. Englehard, 1 How. (Miss.) 19; Diblin v. Murphy, 3 Sandf. 20. See, also, numerous authorities collected in Sedg. Dam. (6th Ed.) 765, note 3; 1 Suth. Dam. 812, note 2; 3 Grah. & W. New Trials, 1162. The practice which this court approved in Railroad Co. v. Herbert is sustained by sound reason, and does not, in any just sense, impair the constitutional right of trial by jury. It cannot be disputed that the court is within the limits of its authority when it sets aside the verdict of the jury, and grants a new trial, where the damages are palpably or outrageously excessive. Ducker v. Wood, 1 Term R. 277; Hewlett v. Cruchley, 5 Taunt. 277, 281; authorities cited in Sedg. Dam. (6th Ed.) 762, note 2. But, in considering whether a new trial should be granted upon that ground, the court necessarily determines, in its own mind, whether a verdict for a given amount would be liable to the objection that it was excessive. The authority of the court to determine whether the damages are excessive implies authority to determine when they are not of that character. To indicate, before passing upon the motion for a new trial, its opinion that the damages are excessive, and to require a plaintiff to submit to a new trial, unless, by remitting a part of the verdict, he removes that objection, certainly does not deprive the defendant of any right, or give him any cause for complaint. Notwithstanding such remission, it is still open to him to show, in the court which tried the case, that the plaintiff was not entitled to a verdict in any sum, and to insist, either in that court or in the appellate court, that such errors of law were committed as entitled him to have a new trial of the whole case. But it is contended that the plaintiff could not have been required to remit so large a sum as $22,833.33, except upon the theory that the jury, in finding their verdict, were either governed by passion, or had deliberately disregarded the facts that made for the defendant; in either of which cases the duty of the court was to set aside the verdict as one not fit to be the basis of a judgment. Undoubtedly, if such had been the view which the court entertained of the motives or conduct of the jury, it would have been in accordance with safe practice to set aside the verdict and submit the case to another jury. That was the course pursued in Stafford v. Haircloth Co., 2 Cliff. 82. In that case, Mr. Justice CLIFFORD, after observing that the damages were greatly excessive and without support in evidence, said: 'Such errors may in many cases and under most circumstances be obviated by remitting the amount of the excess; but where the circumstances clearly indicate that the jury were influenced by prejudice, or by a reckless disregard of the instructions of the court, that remedy cannot be allowed. Where such motives or influences appear to have operated, the verdict must be rejected, because the effect is to cast suspicion upon the conduct of the jury and their entire finding.' This court is not, however, authorized to assume, from the mere fact that $22,833.33 was remitted, that the court below believed that the jury were governed by prejudice, or willfully disregarded the evidence. On the contrary, it may be inferred that the amount for which the plaintiff was entitled to a verdict was ascertained by the court, after a calculation based upon the prices of cattle as given by numerous witnesses; or that the court became satisfied that the preponderance of evidence as to the ownership of some of the cattle was against the plaintiff; or, as to other cattle, that they were not traced to the possession of the defendant. But independently of this view, and however it was ascertained by the court that the verdict was too large by the above sum, the granting or refusing a new trial in a circuit court of the United States is not subject to review by this court. Parsons v. Bedford, 3 Pet. 433, 447; Insurance Co. v. Folsom, 18 Wall. 237, 248, Railroad Co. v. Fraloff, 100 U. S. 24, 31, Equally beyond our authority to review, upon a writ of error sued out by a party against whom a verdict is rendered, is an order overruling a motion for a new trial after the plaintiff, with leave of the court, has remitted a part of the verdict. Whether the verdict should be entirely set aside upon the ground that it was excessive, or was the result of prejudice, or of a reckless disregard of the evidence or of the instructions of the court, or whether the verdict should stand after being reduced to such amount as would relieve it of the imputation of being excessive, are questions addressed to the discretion of the court, and cannot be reviewed at the instance of the party in whose favor the reduction was made. Under what circumstances, if any, a party who is compelled to remit a part of the verdict, in order to prevent a new trial, can complain before this court, we need not decide in the present case. If the circuit court had entered judgment for the whole amount of the verdict below, the defendant could have made no question in this court as to its being excessive. We could only, in that case, have considered matters of law arising upon the face of the record. And we can do no more when the defendant brings to us a record, showing that the court below has, in the exercise of its discretion, compelled the opposite side, us a condition of its overruling a motion for a new trial, to remit a part of the verdict. 2. In support of the plaintiff's claim to have purchased the Slagie-Jordan herd of cattle, and his right to bring suit for their conversion, the following agreement was proven and read in evidence: 'SHEEP CREEK, WYO. TER., Oct. 11, 1880. 'Memorandum of agreement made and entered into this date by and between C. Slagle and John Jordan, of Hepner, Umatilla county, Oregon, and J. J. Mann, of Albany county, Wyo. Ter. Party of the first part has this day sold the following neat cattle to the said party of the second part in consideration of one dollar, the receipt of which is hereby acknowledged, two thousand head, (2,000,) more or less, classed as follows, towit: [Here follows classification of steers, cows, and heifers, according to ages and price per head, and also description of the brands on the different lots constituting the herd;] title guaranteed. Party of the second part agrees to pay for them as follows, to-wit: To ship the three and four year old feeders to Council Bluffs or to Omaha, and in the name of Jordan and Slagle, to the number of six hundred (600) head. If there is not that number of threes and fours, then to ship twos to make up the number six hundred (600) and to guaranty the cattle to net them $26.00, $24 for all, respectively up to the full number of three and fours, and the excess to be reckoned at $18 per head, if the threes and fours should not reach six hundred, (600.) Also to pay $2,000 before cattle are shipped, cash, and the loss on the steers so shipped so soon if any as the steers are sold and money paid to them, Slagle and Jordan, within two days after reaching market. If the steers should net more than the above prices, then the net profit to be credited to party of second part. The balance of said payment to be in ten (10) months from the fifteenth of October, (Oct. 15th,) A. D. 1880, with interest at the rate of twelve per cent. per annum, seller to retain possession of the balance of the herd until the last payment is made. [Signed] 'C. SLAGLE. 'JOHN JORDAN. [Seal.] 'J. J. MANN. [Seal.] 'Witness: CHAS. G. MANTZ.' The instructions asked by the defendant proceeded upon the ground that this agreement was executory only, and that the right of property remained in the seller, Mann acquiring only the right to buy according to the terms of the agreement. The charge of the court was based upon the theory that the title passed by the agreement to Mann; the seller retaining possession of that part of the herd not shipped to Omaha or Council Bluffs simply as security for the amount the buyer agreed to pay. We concur in the view taken by the circuit court. Any other interpretation would, in effect, declare that title could, in no case, pass to a buyer while possession remains with the seller for any purpose whatever. Slagle and Jordan certainly intended to vest Mann with the title, at the date of the bill of sale in question; for that instrument recitesthat the owners had, on the day of its execution, 'sold' the cattle to him, and that recital is followed by clauses guarantying the title, and providing the mode in which the buyer was to make payment. Here are all the elements of an actual sale, as distinguished from an executory agreement. The retention of possession by the sellers until, and as security for, the payment of the price, was not inconsistent with an actual sale by which title passed to the buyer. The agreement in question is unlike that in Harkness v. Russell, 118 U. S. 663, 7 Sup. Ct. Rep. 51, which expressly declared that neither the title, ownership, nor possession should pass from the seller until the note given by the buyer for the stipulated price was paid. 3. The plaintiff asked the following instruction: 'If you find that defendant converted any of the cattle belonging to plaintiff, and that among those converted were cows which either had calves with them at the time of the conversion, or afterwards and before the commencement of this suit had calves, then you are instructed that the plaintiff is entitled to recover the value of such calves or increase, and you may consider as evidence of the number of such increase the average increase of cattle for the years between the time you may find the company took possession and the institution of this suit.' The court below observed: 'That is true, substituting for 'the institution of this suit' the time when the demand was made for the cattle. The plaintiff, if entitled to anything, is entitled to the value of the animals with their increase up to the time of the demand made,—not the commencement of the suit, but the making of the demand.' The defendant insists that this instruction was erroneous. But, in our judgment, it is correct. The calves of such of the cows as belonged to the plaintiff, and were converted by the defendant, certainly belonged to the former; for, according to the maxim, partus sequitur ventrem, the brood of all tame and domestic animals belongs to the owner of the dam or mother. 2 Bl. Comm. 390. The defendant's liability as for conversion extended, at least, to such of the calves, the increase of plaintiff's cows, as were in existence at the time of demand and conversion. As it was not informed of the plaintiff's claim of ownership until his demand in January, 1884, the conversion must be taken to have occurred when it refused to comply with such demand. The plaintiff, if entitled to recover, was entitled to damages proportioned to the value of the cows and their calves at the time of conversion. The damages could not properly exceed the value of the property at that date, and less than that would not be sufficient compensation. 4. Error is assigned by the defendant in relation to that part of the charge stating that the plaintiff, if entitled to recover was entitled to interest from the time of demand at the rate of 10 per cent. That is the rate of interest allowed by the statutes of Colorado on the forbearance or loan of money, where there is no agreement between the parties. Gen. St. Colo. 1883, (1706,) p. 559. In Machette v. Wanless, 2 Colo. 180, which was an action of replevin, in which damages were claimed for the detention of personal property, the court said that 'where the property is domestic animals, valuable for service only, the value of the use of the animal is, of course, the measure of compensation; but where, as in this case, the article is intended for consumption, interest upon the value of it would seem to be the true compensation. If the owner of the grain should wish to obtain the like quantity, he must purchase in the market, at current rates, and he would be deprived of the use of the money thus invested. The best estimate of his loss that can be made is interest upon the amount of money which he would for that purpose be compelled to pay out.' See, also, Hanauer v. Bartels, Id. 514, 525. The same rule ought to control the ascertainment of damages in actions for simple conversion of domestic animals intended for sale and consumption. The plaintiff receives adequate compensation when he is allowed damages equal to the value of the property at the time of conversion, with interest at the established legal rate from that date. He is entitled, as matter of law, to be compensated by the wrong-doer to that extent. Many other questions have been discussed by counsel, but we do not deem it important to refer to them. No substantial error of law appears to have been committed to the prejudice of the defendant, and the judgment is affirmed.
129.US.73	When the decree of a court of equity, for the sale of a tract of land, requires the sale to be made " upon the terms, cash in hand upon the day of sale," and a person bidding for it at the sale is the highest bidder, and as such is duly declared to be the purchaser, no confirmation of the sale by the court is necessary in order to fix liability upon him for tue deficiency arising upon a resale, in case he refuses, without cause, to fulfil his contract; and, if the purchaser refuses to pay the amount bid, the court, without confirming the sale, may order the tract to be resold, and that the purchaser shall pay the expenses arising from the non-completion of the purchase, the application and the resale, and also any deficiency in price in the resale. When a purchaser at a sale of real estate, under a decree of a court of equity, refuses, without cause, to make his bid good, he may be compelled to do so by rule or attachment issuing out of the court under whose decree the sale was had, or he may be proceeded against in the same suit by rule, (or in any other mode devised by the court, which will enable him to meet the issue as to his liability,) in order to make him liable for a deficiency resulting from a resale caused by Ins refusal to make Is bid good.	It is undoubtedly true that Camden's bid of $173,050 was, in legal effect, only an offer to take the property at that price; and that the acceptance or rejection of that offer was within the sound equitable discretion of the court, to be exercised with due regard to the special circumstances of the case, and to the stability of judicial sales. Railroad Co. v. Soutter, 5 Wall. 662; Williamson v. Dale, 3 Johns. Ch. 290, 292; Kable v. Mitchell, 9 W. Va. 492, 509; Core v. Strickler, 24 W. Va. 696; Busey v. Hardin, 2 B. Mon. 407, 411; Hay's Appeal, 51 Pa. St. 58, 61; Childress v. Hurt, 2 Swan, 489; Duncan v. Dodd, 2 Paige, 100, 101. It is further contended that an acceptance of that offer could only have been manifested by an order confirming the sale; and, as no such order was in fact made, that Camden could not be held liable for a deficiency arising upon a resale of the property. In support of this position his counsel cite 2 Daniell, Ch. Pr. (Cooper's Ed.) 1281, in which it is said: 'The rule that the master's report of a purchase must be absolutely confirmed before the contract can be considered as binding, applies equally to cases in which it is sought to compel a purchaser to complete his purchase, as where it is sought to enforce the contract against the vendor. As a preliminary step, therefore, towards enforcing the completion of the contract, it is necessary to have the report confirmed.' The present case, however, is not one in which it is sought to compel the purchaser to complete his purchase. It may be that if the court below had determined to hold Camden to his bid for the property, a necessary preliminary step to that end would have been the formal confirmation of the sale, and perhaps the tender of a deed, to be followed by an order compelling him to pay the whole amount that he offered. But it was not restricted to that particular mode of securing the rights of the parties for whose benefit the property was sold; for, upon appellant refusing to pay the amount bid, the court, without confirming the sale by a formal order, could have held him to his offer, and ordered a resale in the mean time at his risk, both in respect to the expenses of the resale and any deficiency resulting therefrom. The latter course was approved by Lord COTTENHAM in Harding v. Harding, 4 Mylne & C. 514, and was in accordance with previous decisions. Saunders v. Gray, 4 Mylne & C. 515; Gray v. Gray, 1 Beav. 199; Tanner v. Radford, 4 Mylne & C. 519. So in 2 Daniell, Ch. Pr. 1282: 'According, however, to the present practice, a more complete remedy is afforded against a purchaser refusing, without cause, to fulfill his contract; for the plaintiff may obtain an order for the estate to be resold, and for the purchaser to pay as well the expenses arising from the non-completion of the purchase, the application, and the resale, as also any deficiency in price arising upon the second sale.' In view of the terms of the decree of November 17, 1883, there is no ground for the contention that the confirmation of the sale to Camden was necessary in order to fix liability on him for the deficiency arising upon the resale. The decree expressly required that the sale should be made 'upon the terms cash in hand on the day of sale;' thus practically making the payment in cash on the day of sale of the sum bid a condition precedent to the right of the purchaser to demand a confirmation of the sale. The commissioners appointed had no authority to accept from the purchaser anything but cash, nor could they postpone payment of the sum offered beyond the day of sale. They conformed in all respects to the terms of the decree, and Camden bid in his own name, without any previous notice to them that he represented others in so bidding, or that he desired or intended to use the debts of particular creditors in making payment in whole or in part. His application to the court, after the report of sale, that he be permitted to complete his purchase by using the alleged 'contract' of November, 1883, was properly denied, for several reasons: First, the writing of that date could not become a contract binding upon those signing it until it was executed by all whose names appear in its caption; second, after the original decree was passed, and before the first sale took place, judgment creditors, for whom the decree made no provision, intervened in the cause, claiming a lien upon the proceeds of any sale that might be made, some of them asserting priority enen over the creditors named in the decree; third, the court was not bound, in deference merely to the wishes of a part of the creditors, to depart from the terms of sale, especially as the creditors whose names appear in the alleged contract of November, 1883, did not, prior to the sale, ask such modification of those terms as would enable them to use their claims in purchasing and paying for the property. But if there was any ground to insist that a confirmation of the sale was necessary before Camden could be made liable for the deficiency resulting from the resale, all difficulty upon that point was removed by the distinct offer, made in open court, to confirm the sale to him upon his complying with the terms thereof by paying in cash the amount of his bid. This offer having been refused, and the court having been thereby informed that he did not wish to complete the purchase according to the terms of the decree and of his bid, there was no necessity to go through the form of confirming the sale to him, and then immediately ordering a resale, at his risk and cost; but, as we have seen, the court was at liberty, without such formal confirmation, to order a resale, holding him responsible for any deficiency resulting therefrom. The only question that remains to be considered is whether the liability of Camden for the deficiency in the price of the property on the last sale ought to have been ascertained and enforced by an original, independent suit. We are of opinion that the mode adopted in the present case was entirely regular. Where a purchaser refuses, without cause, to make his bid good, he may be compelled to do so by rule or attachment issuing out of the court under whose decree the sale is had. It was so held in Blossom v. Railroad Co., 1 Wall. 656, where it was said that a purchaser or bidder at a master's sale in chancery subjects himself quoad hoc to the jurisdiction of the court, and can be compelled to perform his agreement specifically. In Lansdown v. Elderton, 14 Ves. 512, a motion that the person reported to be the best bidder before the master pay within a given time the purchase money, or stand committed, was sustained by Lord Chancellor ELDON, who observed that the purchaser could not be permitted to disobey an order, more than any other person. That case was followed in Brasher v. Cortlandt, 2 Johns. Ch. 506, where Chancellor KENT, after observing that the purchaser ought to be compelled to complete the purchase, said: 'If no order of this kind could be made in this case, it would follow that not only the purchaser, but the committee of the lunatic, would be permitted to baffle the court, and sport with its decree. * * * I have no doubt the court may, in its discretion, do it in every case where the previous conditions of the sale have not given the purchaser an alternative.' See, also, Blossom v. Railroad Co., 3 Wall. 196, 207; Smith v. Arnold, 5 Mason, 414, 420; Requa v. Rea, 2 Paige, 341; Casamajor v. Strode, 1 Sim. & S. 381; Anderson v. Foulke, 2 Har. & G. 346, 362, 373. If, as is clear, the purchaser can be required, by rule or attachment, to pay into court the entire sum bid by him, and thus complete his purchase, it is difficult to see why a bidder sought to be made liable for a deficiency resulting from a resale caused by his refusal to make his bid good may not be proceeded against in the same suit by rule, or in any other mode devised by the court that will enable him to meet the issue as to his liability. That issue in the present case was tried upon pleadings and proof, and there is no pretense that the appellant had not full opportunity to present his defense before the final order now under review was made. It is suggested by the learned counsel for the appellant that his client occupies an anomalous position, being required to pay a very large sum, without getting anything in return therefor. It is only necessary to say that, even if the late chief justice was mistaken in supposing that the appellant was directly or indirectly interested in the last purchase by Shattuck, his failure to obtain a conveyance of the property was due entirely to his persistent refusal to comply with the terms of his own bid, made with full knowledge of the terms of sale. Decree affirmed.
130.US.353	The facts that the petitioner in this case was sentenced to imprisonment in Ohio, and that the offence was committed within a judicial district instead of an Indian reservation, do not take this case out of the decision in Gon-shay-ee's Case just decided, ante, 343. VOL. xy-x-23 PETITioN for writ of habeas corpus. The case is stated in the opiiion.	The only distinctions between this case and that of Gon-shay-ee, ante, 542, in which the opinion has just been delivered, are—First, that Captain Jack was sentenced to imprisonment at hard labor in the penitentiary of Ohio for 30 years, and the writ must therefore be directed to the keeper of that institution at Columbus, in that state; second, that it appears by the record that in the former case the offense was committed on an Indian reservation, while in the case of Captain Jack the act was done within the judicial district, but not upon such a reservation. We do not consider that these differences have any influence in the decision of the question as to the jurisdiction of the court which tried them both, and that therefore in this case, as in the former, the writ of habeas corpus should issue.
131.US.60	It appearing that the alleged imperfections in the plaintiff's petition were either obviated by subsequent pleadings or cured by the verdict, and that this writ of error was sued out for purposes of delay, the court affirms the judgment below with ten per cent damages, interest and costs.	This is an action at law to recover upon an alleged breach of contract to pay for certain staves made or procured to be made by defendant in error, for plaintiff in error, to be culled, branded, and received by the latter on the Cumberland river and its tributaries, in the counties of Knox and Bell, in the state of Kentucky. The action was commenced in the circuit court of Whitley county, and removed into the circuit court of the United States for the district of Kentucky. The petition of Arthur, the plaintiff below, (omitting the application for attachment,) was as follows: 'The plaintiff, E. F. Arthur, states that before the 30th of May, 1884, he had a contract with the defendant, L. M. Palmer, to make and have made for defendant an unlimited number of staves on the Cumberland river and its tributaries, in the counties of Knox and Bell, state of Kentucky, for which defendant was to pay plaintiff $14 for each 1,000 that were 44 inches in length on the creeks and $15 per 1,000 on the river, $9 per 1,000 for 34-inch staves on the river and $8 per 1,000 on the creeks; that on the 30th of May, 1884, plaintiff had made under the contract 800,000 staves, at which time defendant did not wish any more staves made, and plaintiff and defendant agreed that no more were to be made at the time, and defendant was to pay plaintiff for the staves made, and paid plaintiff at the time $4,017.78 for 286,000 of the staves, and was to pay plaintiff for the remainder, 514,000 staves, on the 1st of November, 1884. Plaintiff states that of 514,000 staves not paid for, and that had been made, 489,000 were 44-inch staves, for which defendant was to pay $14 per thousand, and 25,000 34-inch staves, for which defendant was to pay $8 per thousand; that there was due and owing the plaintiff by the defendant on the 1st of November, 1884, for 489,000, at $14 per thousand, $6,846; for 25,000, at $8 per thousand, $200,—making due and owing the plaintiff by the defendant for said staves $7,046. Plaintiff states that Williamsburg, Ky., is the place where defendant carries on the business of manufacturing staves, etc., and where his authorized agents were located; that at the time the money was due on said staves he called on the agent at his place of doing business for the money, (the defendant being a non-resident of and absent from the state of Kentucky,) and he failed and refused to pay the same, or any part thereof; same still due and owing the plaintiff by the defendant, with interest from the 1st of November, 1884. Plaintiff states that all of said staves have been culled and branded by the defendant, except about 50,000, which it was the duty of the defendant to have culled and branded. Wherefore plaintiff asks judgment for said sum of seven thousand and forty-six dollars, his cost, interest, and all proper relief.' To this petition Palmer, the defendant below, filed an answer, which conceded the existence of the contract, but averred that it was not fully nor accurately set forth by plaintiff, and stated various alleged differences as to the size and character of the staves, and the price to be paid therefor; asserting, also, that 'all upon inspection were to come up to contract requirement,' and that 'the said contract related to and embraced only such staves as might be made by the plaintiff himself, or which might be made by others, and paid for by plaintiff.' It admitted that over 295,000 staves were received and paid for, but denied that defendant had agreed to pay for 514,000 other staves, or that he had culled or branded any other staves than those paid for May 30, 1884, since which date he had 'not accepted, nor has he had an opportunity to accept, any more staves from the plaintiff, but he has also accepted and received from persons making and owning the staves within the territory covered by the agreement with plaintiff about 13,000 staves, and has, with the plaintiff's consent, paid to the persons so making or owning such staves (and who were in nowise parties to the contract between plaintiff and defendant) the full price thereof,' giving items aggregating $153.69. To this answer plaintiff replied, averring, among other things, 'that prior to the 30th of May, 1884, defendant's agents had inspected, culled, and branded the 800,000 staves mentioned in the petition, except about 50,000.' The defendant rejoined to the reply, saying that some time before May 30, 1884, he informed plaintiff 'the contract with him would then be terminated, but that defendant would at once proceed to take up and inspect and pay for enough of the staves made to amount to the sum plaintiff then needed, viz., about $4,000, and the remainder of the staves already made could be inspected, and, if up to contract, taken later. The defendant authorized such an arrangement, and it was agreed upon between and by the parties.' But defendant further averred that plaintiff refused to permit the remaining staves to be inspected. Whereupon plaintiff surrejoined, denying that he refused to allow the staves to be inspected, and also that 'there was to be any other or further inspection of the staves by defendant or his agents after they had been once culled and branded.' The cause having come on for trial, and a jury having been impaneled to try the issue joined, the defendant, after the evidence was all in, amended his answer by averring that the staves in controversy were owned by parties other than plaintiff, which amended answer was 'traversed of record by the plaintiff.' The jury found for the plaintiff the sum of $6,094, with interest from November 1, 1884, and judgment was entered upon said verdict. No motion for a new trial or in arrest was made, nor was any bill of exceptions taken. From the judgment the pending writ of error was prosecuted to this court, and errors assigned as follows: That the circuit court erred '(1) in rendering judgment for the plaintiff for any sum whatever; (2) in not rendering judgment on the trial for the said Lowell M. Palmer instead of for said E. F. Arthur; (3) in not adjudging that the plaintiff in error on the pleadings was entitled to a dismissal of the action, and a judgment for his costs.' From the petition it appears that plaintiff sued upon a contract with defendant to make or cause to be made for him within Knox and Bell counties an unlimited number of staves of specified dimensions, to be paid for at stipulated prices; that on the 30th of May, 1884, plaintiff had made under the contract 800,000 staves, at which time the parties agreed the manufacture should cease, and defendant paid at one for 286,000 of the staves, and agreed to pay for the remainder, viz., 514,000, on the 1st day of the following November, but did not do so, and plaintiff claimed to recover as of November 1, 1884, $6,846 for 489,000 staves at $14 per thousand, and $200 for 25,000 staves at $8 per thousand, and that of the 514,000 staves all had been culled and branded by defendant except 50,000. The defendant disputed the terms of the adjustment of May 30th, and various other of the facts alleged by plaintiff, and insisted he was not bound to take any more staves than he had paid for without an inspection, which he had not been allowed to make. The verdict of the jury excluded the contract price of the 50,000 unbranded staves, and the price of the 13,000 staves, which defendant claimed to have paid others for, with the consent of plaintiff; disposed of the issue as to ownership; and necessarily determined the number of staves over and above what had been paid for May 30, 1884, and the number which had been culled and branded by the defendant; and that the agreement between the parties was such that the culling and branding amounted to an acceptance of the staves so culled and branded, the delivery and acceptance being complete without any further in spection. The objections to the petition amount simply to asserting that the ground of action was imperfectly and inaccurately stated; and whatever defects, imperfections, or omissions there may have been, if not obviated by the subsequent pleadings, were cured by the verdict, which must be assumed to have proceeded upon proof of facts which justified it; and, as it is apparent that the writ of error could only have been sued out for purposes of delay, the judgment is affirmed, with 10 per cent. damages, interest, and costs.
132.US.464	When a pleading misstateS the effect and purpose of a statute upon winch the party relies, a demurrer to it does not admit the correctness of the construction, or that the statute imposes the obligations or confers the rights which the party alleges. The legislature of California, in 1878, enacted a statute which provided for the payment of the police force of San Francisco at a rate "which should not exceed .102 a month for each one," subject to the condition that the treasurer of the city and county " should retain from the pay of ea~h police officer the sum of two dollars per month to be paid into a fund to be known as the police life and health insurance fund." The act further provided that upon the death of any member of the police force after June 1, 1878, there should be paid by said treasurer out of said life and health insurance fund to his legal representative the sum of $1000. On the 4th of March, 1889, this act was repealed and another statute enacted creating " a police relief and pension fund," and transferring to it the police life and health insurance fund, which had been created under the other act, and making new and different provisions for the distribution of the new fund. W was a police officer of the city and county from 1869 until his death on March 13, 1889, after the repealing act had gone into operation. His administrator sued to recover $1000 from the police life and health insurance fund, which then amounted to $40,000- Held, that this fund was a public fund, subject to legislative control, and that W had no vested interest in it, which could not be taken away by the legislature during his lifetime.	It was contended in the court below that this latter act of March 4, 1889, violated that provision of the constitution of the United States and of the state which declares that no person shall be deprived of his property without due process of law. The supreme court of the state held that this contention went on the theory that the deceased police officer had at the time of his death a vested property right in the $1,000 of public money which the former statute had directed to be paid to his legal representative upon his death. The petitioner now insists that this statement of his contention below is erroneous; that he did not then contend, and does not now contend, that the fund in the hands of the treasurer was public money, but private money accumulated from the contributions of the members of the police force, and that by Ward's contribution the sum claimed became, on his death, like money due on a life insurance policy, property of his estate. Such, at least, is his position, if we rightly understand it. Some plausibility is given to it by the language of the petition to which the treasurer demurred. The petition alleges that Ward, the deceased, contributed, out of his salary as a police officer, to the police life and health insurance fund the sum of two dollars per month for each month from April 1, 1878, to and including the month of March, 1889, and that the whole amount of his contribution to that fund was $264; that upon his death there was due to the petitioner, as the legal representative of Ward, the sum of $1,000, payable out of that fund; that it was the duty of the treasurer of that fund to pay it; and that there was in his possession at the time $40,000 applicable to its payment. The petitioner now contends that these several allegations are to be taken as literally true, from the fact that the treasurer demurred to the petition. But a demurrer admits only allegations of fact, and not conclusions of law. When, therefore, a plaintiff relies for recovery upon compliance with the provisions of a statute, and attempts to set forth conformity with them, the court will look to that statute, and take the allegations as intended to meet its provisions, notwithstanding the inaccuracy of any statement respecting them. If the pleading misstates the effect and purpose of the statute upon which the party relies, the adverse party, in demurring to such pleading, does not admit the correctness of the construction, or that the statute imposes the obligations or confers the rights which the party alleges. Dillon v. Barnard, 21 Wall. 430, 437. Notwithstanding, therefore, in this case, the petitioner avers that the deceased police officer contributed out of his salary $2 a month, pursuant to the law in question, and, in substance, that the fund which was to pay the $1,000 claimed was created out of like contributions of the members of the police, the court, looking to the statute, sees that, in point of fact, no money was contributed by the police officer out of his salary, but that the money which went into that fund under the act of April 1, 1878, was money from the state, retained in its possession for the creation of this very fund; the balance, $100, being the only compensation paid to the police officer. Though called part of the officer's compensation, he never received it or controlled it, not could he prevent its appropriation to the fund in uestion. He had no such power of disposition over it as always accompanies ownership of property. The statute, in legal effect, says that the police officer shall receive as compensation, each month, not exceeding $100, or such sum as may be fixed after June 1, 1879, by a board of commissioners created under the act, and that in addition thereto the state will create a fund, by appropriating $2 each month for that purpose, from which, upon his resignation for bad health or bodily infirmity, or dismissal for mere incompetency, not coupled with any offense against the laws of the state, a certain sum shall be paid to him, and, upon his death, a certain sum shall go to his legal representative. Being a fund raised in that way, it was entirely at the disposal of the government until, by the happening of one of the events stated,—the resignation, dismissal, or death of the officer,—the right to the specific sum promised became vested in the officer or his representative. It requires no argument or citation of authorities to show that in making a disposition of a fund of that character, previous to the happening of one of the events mentioned, the state impaired no absolute right of property in the police officer. The direction of the state that the fund should be one for the benefit of the police officer or his representative, under certain conditions, was subject to change or revocation at any time, at the will of the legislature. There was no contract on the part of the state that its disposition should always continue as originally provided. Until the particular event should happen upon which the money, or a part of it, was to be paid, there was no vested right in the officer to such payment. His interest in the fund was until then a mere expectancy, created by the law, and liable to be revoked or destroyed by the same authority. The law of April 1, 1878, having been repealed before the death of the intestate, his expectancy became impossible of realization. The money which was to pay the amount claimed had been previously transferred and mingled with another fund and was no longer subject to the provisions of that act. Such being the nature of the intestate's interest in the fund provided by the law of 1878, there was no right of property in him of which he or his representative has been deprived. If the $2 a month retained out of the alleged compensation of the police officer had been in fact paid to him, and thus become subject to his absolute control, and after such payment he had been induced to contribute it each month to a fund on condition that upon his death $1,000 should be paid out of it to his representative, a different question would have been raised with respect to the disposition of the fund, or at least of the amount of the decedent's contribution to it. Upon such a question we are not required to express any opinion. It is sufficient that the $2 retained from the police officer each month, though called in the law a part of his compensation, were, in fact, an appropriation of that amount by the state each month to the creation of a fund for the benefit of the police officers named in that law, and, until used for the purposes designed, could be transferred to other parties, and applied to different purposes, by the legislature. Judgment affirmed.
136.US.570	Hartranft v. Oliver, 125 U. S. 525, affirmed and applied to this case.	The judgment of the court below is reversed with costs, on the authority of the decision of this court in the case of Hartranft v. Oliver, 125 U. S. 525, 8 Sup. Ct. Rep. 958, (No. 190 of October term, 1887,) and the cause is remanded with directions to enter judgment for the plaintiffs.
132.US.518	A person employed by a corporation under a written contract to sell sewingmachines, and to be paid for his services by commissions on sales and collections; the company furnishing a wagon, and he furnishing a horse and harness, to be used exclusively in canvassing for such sales and in the general prosecution of the business; and he agreeing to give his whole time and best energies to the business, and to employ hnself under the direction of the company and under such rules and instructions as it or its manager shall prescribe; is a servant of the company, and the company is responsible to third persons injured by his negligence m the course of his employment.	The general rules that must govern this case are undisputed, and the only controversy is as to their application to the contract between the defendant company and Corbett, the driver, by whose negligence the plaintiff was injured. A master is liable to third persons injured by negligent acts done by his servant in the course of his employment, although the master did not authorize or know of the servant's act or neglect, or even if he disapproved or forbade it. Railroad Co. v. Derby, 14 How. 468, 486. And the relation of master and servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or, in other words, 'not only what shall be done, but how it shall be done.' Railroad Co. v. Hanning, 15 Wall. 649, 656. The contract between the defendant and Corbett upon the construction and effect of which this case turns, is entitled 'Canvasser's Salary and Commission Contract.' The compensation to be paid by the company to Corbett for selling its machines, consisting of 'a selling commission' on the price of machines sold by him, and 'a collecting commission' on the sums collected of the purchasers, is uniformly and repeatedly spoken of as made for his 'services.' The company may discharge him by terminating the contract at any time, whereas he can terminate it only upon 10 days' notice. The company is to furnish him with a wagon; and the horse and harness to be furnished by him are 'to be used exclusively in canvassing for the sale of said machines, and the general prosecution of said business.' But, what is more significant, Corbett 'agrees to give his exclusive time and best energies to said business,' and is to forfeit all his commissions under the contract, if, while it is in force, he sells any machines other than those furnished to him by the company; and he further 'agrees to employ himself under the direction of the said Singer Manufacturing Company, and under such rules and instructions as it, or its manager at Minneapolis, shall prescribe.' In short, Corbett, for the commissions to be paid him, agrees to give his whole time and services to the business of the company; and the company reserves to itself the right of prescribing and regulating, not only what business he shall do, but the manner in which he shall do it, and might, if it saw fit, instruct him what route to take, or even at what speed to drive. The provision of the contract that Corbett shall not use the name of the company in any manner whereby the public, or any individual may be led to believe that it is responsible for his actions, does not and cannot affect its responsibility to third persons injured by his negligence, in the course of his employment. The circuit court therefore rightly held that Corbett was the defendant's servant, for whose negligence, in the course of his employment, the defendant was responsible to the plaintiff. Railroad Co. v. Hanning, above cited; Linnchan v. Rollins, 137 Mass. 123; Regina v. Turner, 11 Cox, Crim. Cas. 551. Judgment affirmed.
130.US.643	A purchaser of land, taking a conveyance from the vendor, with a covenant for peaceable possession, cannot maintain an action for its rental value from the date of conveyance until placed in actual possession, in consequence of being kept out by a trespasser: since he might have required the delivery of such possession to accompany the conveyance and the payment of the purchase money.	As appears by the above statement, the gist of the action is the alleged deceit practiced upon the plaintiff by the agents, attorneys, and officers of the company to induce him to purchase from it a lot in Leadville, by representing that it had obtained a release of the right of all claimants to the land, and could put him into immediate possession; whereas, upon attempting to enter upon the land purchased he found another in possession, who refused to surrender it, and thus he was kept out of possession from the time of his purchase, March 27, 1879, to February 22, 1883, during which period he lost its rental value. To this ground of complaint there are two obvious answers. In the first place, the plaintiff could have required the delivery of the possession of the land to accompany the payment of the money. The lot, being in the town, might have been readily reached, when the ability of the company to give possession could have been at once determined. The plaintiff alleges that he used all diligence in his power to find out whether the representations of the officers, agents, and attorneys of the company were true or false, but the inspection of the premises, the most natural and obvious mode of ascertaining whether they were occupied by another, does not seem to have been resorted to. The law does not afford relief to one who suffers by not using the ordinary means of information, whether his neglect be attributable to indifference or credulity, nor will industrious activity in other directions, to the neglect of such means, be of any avail. Besides, it does not appear at what time the party in possession entered upon the land. The complaint only alleges that when—the time not being stated—the plaintiff attempted to take possession, he found another person there, who, for aught that appears, may have gone on the land after the execution and delivery of the deed. There was at the time, according to the allegations of the complaint, a great struggle to obtain possession of lots among the crowd of persons pressing to the town owing to the report of rich gold discoveries within its immediate neighborhood. The claim of right to the land advanced by the occupant was founded only upon her alleged prior possession of it as a part of the public domain of the United States, a claim which would seem, from the result of the ejectment suit against her brought by the company, to have been entirely worthless. The complaint alleges that the defendant represented that it had received a patent from the government of the United States for the premises, as well as for a large number of other lots in the town, and contains no averment that this representation was untrue. It may therefore be fairly presumed that, upon the title thus conferred, the company subsequently evicted the intruder. The possession of a patent of the United States would have justified all the representations alleged, as to title and right of possession, and the purchaser might have called for an inspection of that document, if doubtful of the statements of the agents and officers of the vendor. In the second place, the covenant in the deed for quiet possession merged all previous representations as to the possession, and limited the liability growing out of them. Those representations were to a great extent, if not entirely, mere expressions of confidence in the company's title, and the right of possession which followed it, against all intruders. The covenant was an affirmance of those statements in a form admitting of no misunderstanding. It was the ultimate assurance given upon which the plaintiff could rely, a guaranty against disturbance by a superior title. That covenant has not been broken. It is a covenant against disturbance by 'persons lawfully claiming' the premises or any part thereof. If the occupant holds by a paramount title, and thus lawfully excludes the purchaser from possession, the covenant is broken. But it is not broken by a tortious disturbance. If the occupation is without right, the remedy of the purchaser is to dispossess the iutruder. His occupation does not constitute a breach of the covenant. Beebe v. Swartwout, 3 Gilman, 162, 179; Kelly v. Dutch Church of Schenectady, 2 Hill, 105, 111. False and fraudulent representations upon the sale of real property may undoubtedly be ground for an action for damages, when the representations relate to some matter collateral to the title of the property, and the right of possession which follows its acquisition, such as the location, quantity, quality, and condition of the land, the privileges connected with it, or the rents and profits derived therefrom. Lysney v. Selby, 2 Ld. Raym. 1118; Dobell v. Stevens, 3 Barn. & C. 623; Monell v. Colden, 13 Johns. 396; Sandford v. Handy, 23 Wend. 260; Van Epps v. Harrison, 5 Hill, 63. Such representations by the vendor as to his having title to the premises sold may also be the ground of action where he is not in possession, and has neither color nor claim of title under any instrument purporting to convey the premises, or any judgment establishing his right to them. Thus, in Wardell v. Fosdick, 13 Johns. 325, an action for deceit was sustained against the vendor of land which had no actual existence, the court holding that in such case the purchaser might treat the deed as a nullity. The land not being in existence, there could be no possession, and of course no eviction, and consequently no remedy upon the covenants; and the purchaser would be remediless if he could not maintain the action. But where the vendor, holding in good faith under an instrument purporting to transfer the premises to him, or under a judicial determination of a claim to them in his favor, executes a conveyance to the purchaser, with a warranty of title and a covenant for peaceable possession, his previous representations as to the validity of his title, or the right of possession which it gives, are regarded, however highly colored, as mere expressions of confidence in his title, and are merged in the warranty and covenant, which determine the extent of his liability. Judgment affirmed.
132.US.14	An appeal from a decree granting, refusing, or dissolving an injunction does not disturb its operative effect. When an injunction has been dissolved it cannot be revived except by a new exercise of judicial power. The prosecution of an appeal cannot operate as an injunction where none has been granted. Although a bill to impeach a judgment at law is regarded as auxiliary cr dependent, and not as an original bill, the supersedure of process on the decree dismissing the bill does not operate to supersede process on the judgment at law.	Appellant's counsel contends that the appeal taken and perfected from the decree dismissing his client's bill of complaint operated, or should be made to operate, to supersede the judgment, in collection of which the peremptory writ of mandamus was awarded. That judgment was recovered on the 28th day of March, 1881, and no proceedings in error have ever been taken, and no bond given to supersede its operation. An alternative writ of mandamus was sued out, the cause shown by the county court and its judges against granting the peremptory writ was disposed of by this court on writ of error, and the peremptory writ was directed to be issued. The county of Knox then filed its bill in equity to restrain the collection of the judgment as commanded. No preliminary injunction was granted, and upon final hearing the bill was dismissed, and a decree passed against the county for costs. The general rule is well settled that an appeal from a decree granting, refusing, or dissolving an injunction does not disturb its operative effect. Hovey v. McDonald, 109 U. S. 150, 161, 3 Sup. Ct. Rep. 136; Slaughter-House Cases, 10 Wall. 273, 297; Leonard v. Land Co., 115 U. S. 465, 468, 6 Sup. Ct. Rep. 127. When an injunction has been dissolved it cannot be revived EXCEPT BY A NEW EXERCISE OF JUDICIAL POwer, and no appeal by the dissatisfied party can of itself revive it. A fortiori, the mere prosecution of an appeal cannot operate as an injunction where none has been granted. As stated by Mr. Chief Justice WAITE in Spraul v. Louisiana, 123 U. S. 516, 518, 8 Sup. Ct. Rep. 253, 'the supersedeas provided for in section 1007 of the Revised Statutes stays process for the execution of the judgment or decree brought under review by the writ of error or appeal to which it belongs.' The supersedure of process on the decree dismissing the bill could not supersede process on the judgment at law, and this is so, notwithstanding a bill to impeach a judgment is regarded as an auxiliary or dependent, and not as an original, bill. The record presents no ground for the interference sought, and the motion must be overruled.
132.US.264	No. 86. Submitted NIovember 7,1889;-Decided Nq'ovember 25,1889.	This is an action to quiet the title to certain placer mining ground, 20 acres in extent, in Silver Bow county, Mont., claimed by the plaintiff below, the Montana Copper Company, under a location made in March, 1879, against the assertion of ownership by the defendant to a portion of the premises as a lode claim under a location made in March, 1881. The plaintiff applied for a patent for its placer ground in November, 1880, and notice of the application was published by the register of the local land-office, and all the other provisions of the statute required in such cases were complied with. No adverse claim was filed by the defendant or any one else during the period of publication. The Dahl lode claim was not located until after that period had expired. The defendant is therefore precluded from questioning the right of the plaintiff to a patent for the premises, and, of course, from objecting either to the location or its character as placer ground. The only question open to him in this controversy is whether the lode or vein claimed by him was known to exist at the date of the plaintiff's application, none having been included in such application, and upon that question a jury have passed, and found specially that no lode or vein was then known to exist within the boundaries of the placer claim. The case is similar in this respect to the one just decided, (Dahl v. Raunheim, ante, 74.) But the plaintiff in error endeavors to raise another question in this court, namely, as to the competency of the Montana Copper Company, the plaintiff below, to do business in the territory, and, consequently, to maintain any suit respecting its property, because it does not appear that it has complied with the conditions imposed by the statute of the territory to its transacting business there. That statute, which was passed in July, 1879, provided that all foreign corporations organized under the laws of any state of territory of the United States, or by virtue of any special acts of the legislative assembly of such state or territory, or of any foreign government, should, before doing business within the territory, file in the office of its secretary, and in the office of the county recorder of the county wherein they intend to carry on business, an authenticated copy of their charter or certificate of incorporation, and also a statement verified by their president and secretary, and attested by a majority of the board of directors, showing—First. The name of such incorporation and the location of its principal office or place of business, without this territory; and, if it is to have any place of business or principal office within this territory, the location thereof. Second. The amount of its capital stock. Third. The amount of its capital stock actually paid in money. Fourth. The amount of its capital stock paid in any other way, and in what. Fifth. The amount of the assets of the incorporation, and of what the assets consist, with the actual cash value thereof. Sixth. The liabilities of such incorporation, and, if any of its indebtedness is secured, how secured, and upon what property. The statute also provided that such corporation or joint-stock company should file at the same time and in the same offices a certificate under the signature of its president, or other acting head, and its secretary, stating that the corporation had consented to be sued in the courts of the territory in all causes of action arising within it, and that service of process might be made upon some person, a citizen of the territory, whose name and place of residence should be designated, and that such service should be taken and held to be as valid to all intents and purposes as if made upon the company in the state or territory under the laws of which it was organized. The statute also provided a forfeiture of $10 a day for every day in which such foreign corporation should, after four months from the publication of the act, neglect to file the statements and certificates mentioned, and declared that all acts and contracts made by such incorporation, or any agent or agents, during the time it should fail and neglect to file the statements and certificates, should be void and invalid as to such corporation. In the present action the plaintiff alleges in its complaint that it is a corporation created under the laws of New York, doing business in Silver Bow county, in the territory of Montana, and is the owner of the property in controversy. The answer of the defendant does not deny its incorporation, or its right to do business in that county, but only its ownership of the property. No question is therefore raised on the pleadings as to its competency to do business within the territory for want of compliance with the provisions of the territorial law. The question at issue on the pleadings and on the trial in the court below was confined to the ownership of the mining ground. Without, therefore, considering the validity and force of the provisions of that law, (congress having permitted corporations, whether formed within or without that territory, to explore for and hold mining claims on the public domain, McKinley v. Wheeler, 130 U. S. 630, 9 Sup. Ct. Rep. 638,) or whether, if they are valid, any parties except the government of the territory can allege a disregard of them, to defeat the title of the corporation to its property, (Fritts v. Palmer, 132 U. S. ——, ante, 93,) it is sufficient in this case to say that such incompetency cannot be considered unless set up in the pleadings in the court below. A failure to comply with the provisions of the law will not be presumed, in the absence of any allegation on the subject. The objection cannot be urged for the first time in this court. Judgment affirmed.
132.US.84	The first five claims of letters patent No. 288,494, granted to Joseph Aron, as assignee of William W Rosenfield, the inventor, November 13, 1883, for an "Improvement in railway car gates," are invalid, because what Rosenfield did did not require invention. The same devices employed by him existed in earlier patents; all that he did was to adapt them to the special purpose to which he contemplated their application, by maling modifications which did not require invention, but only the exercise of ordinary mechanical skill, and his right to a patent must rest upon the novelty of the means he contrived to carry his idea into practical application.	This is a suit in equity, brought by Joseph Aron against the Manhattan Railway Company, in the circuit court of the United States for the southern district of New York, to recover for the infringement of letters patent No. 288,494, granted to the plaintiff, as the assignee of William W. Rosenfield, the inventor, November 13, 1883, for an 'improvement in railway car gates,' the application for the patent having been filed April 3, 1883. The circuit court, held by Judge WALLACE, dismissed the bill, and the plaintiff has appealed. The specification of the patent says: 'In many classes of railway cars, and particularly those used upon the elevated and other city railways, it has been found necessary, in order to prevent passengers from falling from the train, and also to prevent persons from attempting to get off or on a car while in motion, to provide the entrances to the car platforms with gates, by which they can be closed except at the proper times. These gates are usually in charge of a guard or attendant, whose duty it is to close the gates before the train commences to move, and to open them only after the train has come to a full stop. As there is usually but one guard or attendant stationed between each two adjoining cars, it follows that to open or close both gates he must pass around from one to the other of the adjoining platforms. This passing from one platform to the other, besides being a source of annoyance to the guard, occasions some delay, which is very annoying to the passengers particularly at times when a large number are required to get off or on a car in a very short time. It is the object of the present invention, among other things, to provide means by which the guard or attendant can, without changing his position, open or close both gates simultaneously, and with the least possible delay. To that end, one feature of the invention consists in providing the gates with connections so arranged that any two adjoining gates can be simultaneously opened or closed by the guard while standing in the passage-way leading from one of the cars to the other.' The drawings annexed to the patent represent two ordinary railway cars, with platforms adjoining each other, and the usual entrances from the station platform, and gates of the ordinary construction for closing such entrances. The gates are hinged in the usual manner to posts which rise from the corners of the platforms, and close against the usual jambs which project from the sides of the cars. The platforms are provided with the usual guard-railings, extending inward from the above-mentioned posts to similar posts which are located a sufficient distance apart to leave a passage-way from one car to the other. When the gates are thus arranged, it is necessary, in order to close or open both gates, for the guard to pass from one platform around the inner post to the opposite platform, thus causing some delay in opening and closing one of the gates, adding to the labor of the guard, and causing annoyance to the passengers. In order to avoid this, each of the gates is provided, at a suitable distance from its hinge, with a curved lever, which extends rearward, and terminates a short distance outside of the guard-railing. This lever in connected by a link, e, with a rod, f, which slides in or on a suitable bearing secured to the guard-railing, and is provided at its inner end with a handle by which it can be operated. The guard or attendant, while standing in the passage-way, can, by grasping the two handles, and pushing or pulling the rods, f, open or close both gates simultaneously, and without loss of time. The specification states that the rods, f, will preferably be provided with some form of locking mechanism by which the gates can be fastened in their opened or closed positions; and that such locking may be accomplished by having the handles pivoted to the rods, f, as shown, and provided with extensions which can be turned so as to extend in front of the inner posts, and hold the gates closed, or so as to lie in the rear of lugs and hold the gates open. It then describes an arrangement whereby the rods, f, and links, e, may be placed upon the inside of the guard-railings, as well as upon the outside; and also an arrangement by which the connections for operating the gates may, if desired, be placed beneath the platforms; and also an arrangement whereby the gates may be so hinged as to lie against the body of the car when open, instead of against the guard-railings; and also an arrangement whereby sliding gates may be used, instead of swinging gates. There are six claims in the patent, only the first five of which are involved in the present case. They are as follows: '(1) The combination, with a gate arranged to close the side entrance to a car-platform, of an operating handle, located at or near the inner end of the platform guard-rail, and means connecting said gate and handle, whereby the attendant may open and close the gate while standing at the end of said guard-rail, substantially as described. (2) The combination, with gates arranged to close the side entrances to the adjoining platforms of two cars, of operating handles, located at or near the inner ends of the platform guard-rails, and means connecting said gates and handles, whereby the attendant may open or close both gates simultaneously while standing at the ends of said guardrails, substantially as described. (3) The combination, with a railway car and its platform, having an end guard-rail, by which a side entrance thereto is provided, of a gate for closing said entrance, a rod, as f, sliding in or on guides secured to said guard-rail, and a link, as e, connected to said gate and rod, all substantially as described. (4) The combination, with a railway car and its platform, having an end guard-rail, by which a side entrance thereto is provided, of a swinging gate for closing said entrance, a rod, as f, sliding in or on a guide secured to said rail, a link, as e, connected to said gate and rod, and means for locking said gate in its closed position, all substantially as described. (5) The combination, with gates arranged to close the side entrances to the adjoining platforms of two cars, of rods, as f, sliding in or on guides secured to the guard-rails of said platforms, and links, as e, connected to said gates and rods, substantially as described.' The opinion of Judge WALLACE is reported in 26 Fed. Rep. 314. The only question he considered was that of the patentable novelty of the improvement, saying: 'A brief reference to the prior state of the art will indicate that the combinations referred to in the several claims are merely an application to a new situation of old devices which had previously been applied to analogous uses. Devices to open and close an aperture at a distance from the operator, in a great variety of forms, were old. As illustrations of those things which are matters of common knowledge, and of which the court will take judicial notice, it is sufficient to allude to the strap used by the driver at the front of the omnibus to open and close the rear door; to the devices for opening or closing valves at a distance, in steam and hydraulic apparatus; and to the devices used at railway switches for opening and closing the rails. Referring to the prior state of the art, as shown by various prior patents which have been introduced in evidence, it appears also that mechanism to open and close the entrance to passenger cars at a point distant from the operator was likewise old; as where the operator standing upon the front platform employed such mechanism to open or close a door at the rear platform. One prior patent alone—the one granted to John Stephenson, September 15, 1874—shows five methods of closing and opening the rear door of street-cars from the front platform. Mechanism for closing and opening apertures at a distance from the operator, in which the same devices were employed as are employed by the patentee, was old, and is disclosed in a number of earlier patents, which have been put in evidence. It will suffice to refer to two only. The patent to Woolensak of March 11, 1873, for an improvement in transom-lifters, describes the means for opening and closing the transom as consisting of a sliding rod, which is connected by a pivoted link to the arm of the transom frame. The patent to Carrigan, granted April 16, 1878, for an improvement in blind-adjusters, whereby outside blinds are opened and closed without lifting the window-sash, describes as the mechanism employed a sliding bar connected by a pivoted link with a hinged shutter. In both of these patents the aperture to be opened and closed at a distance from the operator—in the one case a shutter, and in the other a transom—is opened and closed, as is the case in the patent in suit, by pushing or pulling the sliding rod or bar. In both of these patents there is likewise described a locking device, by means of which the sliding rod or bar is retained in a fixed position, so that the shutter or the transom will remain fastened when opened or closed, at the option of the operator; thus showing opening, closing, and locking apparatus in all essentials like that of the patent in suit. Moreover, the patent to Carrigan shows this apparatus arranged to open and close the two shutters of the window, at the option of the operator, simultaneously, the sliding bars being so arranged as to be pushed or pulled each by one hand of the operator. Mechanism for opening and closing apertures distant from the operator, in which the devices used for the purpose are the mechanical equivalents of those employed by the patentee, is shown to be old by a large number of patents which have been put in evidence. This partial exhibit of the prior state of the art demonstrates that what the patentee did was to adapt well-known devices to the special purpose to which he contemplated their application. It was necessary that the gate should swing in ward to open, and out ward to close; that the sliding rod should be located where it would be out of the way of passengers entering or leaving the platform; and that the end or handle of the rod should be located where it could be conveniently operated by the attendant, without inconveniencing outgoing or incoming passengers. The new situation required adequate modifications of existing devices for opening and closing an aperture at a distance from the operator, appropriate to the new occasion. Accordingly, the patentee located the rods on bearings secured to the guard-rails, with their handles near the passage-way formed by the space or opening near the middle of the guard-rail. If this required invention, his improvement was the proper subject of a patent. He did nothing more, and nothing less, than this. It seemsimpossible to doubt that any competent mechanic familiar with devices well-known in the state of the art, could have done this readily and successfully, upon the mere suggestion of the purpose which it was desirable to effect. When it was done as to one car platform, it was only requisite to duplicate it upon another, to make the improvement of the patentee in all its length and breadth. The patentee is entitled to the merit of being the first to conceive of the convenience and utility of a gate opening and closing mechanism which could be operated efficiently by an attendant in the new situation. His right to a patent, however, must rest upon the novelty of the means he contrives to carry his idea into practical application. It rarely happens that old instrumentalities are so perfectly adapted for a use for which they were not originally intended as not to require any alteration or modification. If these changes involve only the exercise of ordinary mechanical skill, they do not sanction the patent; and in most of the adjudged cases, where it has been held that the application of old devices to a new use was not patentable, there were changes of form, proportion, or organization of this character which were necessary to accommodate them to the new occasion. The present case falls within this category.' We concur in these views, and affirm the decree of the circuit court.
135.US.1	An appeal from the decision of a Circuit Court of the United States in a habeas corpus case, under Rev. Stat. § 764, as amended by the act of March 3, 1885, 23 Stat. 437, c. 353, brings up the whole case, both law and facts, and imposes upon this court the duty of reexamining it, upon the full record as it was heard in the inferior court. A person who is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process or decree of a court, or judge thereof, or is in custody in violation of the Constitution, or a law or treaty of the United. States, may, under the provisions of Rev. Stat. § 753, be brought before any court of. the United States, or justice or judge thereof, by writ of habeas corputs, for the purpose of an inquiry into the cause of his detention; and the court or justice or judge is required by § 761 to proceed in a summary way to deiermine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law, and j1~stice require. By virtue of Rev. Stat. §§ 606, 610, the justices of the Supreme CQurt of the United States are allotted among the nine circuits, to each one of which a judge is assigned; and the latter section makes it the duty of each judge to attend the Circuit Court in each district of the circuit to which he is allotted, and thereby imposes upon him the necessity of travelling from his residence to the Circuit Court which he is to attend, and from each place in that circuit where the court is held'to the other places where it is held. Held, that, while a judge is thus travelling to or from those places, he is as much in discharge of his duty as when listening to and deciding cases in open court, and is as much entitled to protection in the one case as in the other. While there is no express statute authorizing the appointment of a deputy marshal, or any other officer to attend a judge of the Supreme Court Wvhen travelling in his circuit, and to protect him against assaults" or other injury, the general obligation imposed upon the President of the United States 'by the Constitution to see that the laws be faithfully executed, and the means placed in his hands, both by the Constitution and the laws of the United States, to enable him to do this, impose upon the Executive department the duty of protecting a justice or judge of any of the courts of the United States, when there is just reason to believe that he will be in personal danger while executing the duties of his office. An assault upon a judge-of a court of the United States, while in discharge bf his official duties, is a breach of the peace of the United States, as distinguished from thd peace of the State in which the assault takes place. Under the provisions of Rev. Stat. § 788, it is the duty of marshals and their deputies in each State to exercise, in keeping the peace of the United States, the powers given to the sheriffs of the State for keeping the peace of the State; and a deputy marshal of the United States, specialty charged with the duty of protecting and guarding a judge of a court of the United States, has imposed upon him the duty of doing whatever may be necessary for that purpose, even to the taking of 'human life. United States officers and other persons, held in custody by state authorities for doing acts which they were authorized or required to do by the Constitution -and laws of the United States, are entitled to be released from such imprisonment; and the writ of habeas copus is the appropriate remedy for that purpose. David Neagle, a deputy marshal of the United States for the District ot California, was brought by writ of habeas coipus before the Circuit Court of that District, upon the allegation that he was held in imprisonment by.t he sheriff of San Joaquin County, California, on a charge of the murder of David S. Terry. He alleged that the killing of Terry by him was done in pursuance of his duty as such deputy marshal in defending the life. of Mr. Justice Field, while in discharge of his duties as Circuit Judge of the ninth circuit. On the trial of this writ in the Circuit Court it entered an order discharging the prisoner, finding that be was in custody for an act done in pursuance of a law of the United States, and was imprisoned in violation of the Constitution and laws of the United States. The case being brought up to the Supreme Court by appeal, this court, on examining the voluminous testimony, arrived at the conviction that there was a settled purpose on the part of Terry and his wife, amounting to a conspiracy, to murder Mr. Justice Field, on his official visit to California in the summer of 1889; that this arose from animosity against him on account of judicial decisions made in the Circuit Court of the United States for the Northern District of California in a suit or suits to which they were parties; that the purpose which they had of doing Mr. Justice Field an injury became so well and so publicly known, that a correspondence ensued between the marshal anti the District Attorney of that District and the Attorney General of the United States, the result of which was that Nleagle was appointed a deputy marshal for the express purpose of guarding Mr. Justiqc Field against an attack by Terry and his wife which might result in his death; that such a4 attack did take place; that Neagle, being there for the said purpose of affording protection, had just reason to believe that the attack would result in the death of M1r. Justice Field unless he interfered: and that he did justifiably interfere by shooting Terry while in the acttof assaulting 'Mr. Justice Field, whom lie had already struck two or three times. lck, (1) That Neagle was justified in defending Mr. Justice Field in thlis manner; (2) That in so doing he acted in discharge of his duty as, an officer of the United States; (3) That having so acted, in that capacity, he could not be guilty of murder under the laws of California, nor held to answer to itg courts for an act for which lie had the authority of the laws of the United States; (4) That the judgment of the Circuit Court, discharging him from the custody of the sheriff of San Joaquin County, must therefore be affirmed.	This is an appeal by Cunningham, sheriff of the county of San Joaquin, in the state of California, from a judgment of the circuit court of the United States for the northern district of California, discharging David Neagle from the custody of said sheriff, who held him a prisoner on a charge of murder. On the 16th day of August, 1889, there was presented to Judge SAWYER, the circuit judge of the United States for the ninth circuit, embracing the northern district of California, a petition signed, 'DAVID NEAGLE, Deputy United States Marshal,' by A. L. Farish on his behalf. This petition represented that the said Farish was a deputy-marshal duly appointed for the northern district of California by J. C. Franks, who was the marshal of that district. It further alleged that David Neagle was, at the time of the occurrences recited in the petition, and at the time of filing it, a duly-appointed and acting deputy United States marshal for the same district. It then proceeded to state that said Neagle was imprisoned, confined, and restrained of his liberty in the county jail in San Joaquin county, in the state of California, by Thomas Cunningham, sheriff of said county, upon a charge of murder, under a warrant of arrest, a copy of which was annexed to the petition. The warrant was as follows: In the justice's court of Stockton township. State of California, county of San Joaquin—as.: The people of the state of California to any sheriff, constable, marshal, or policeman of said state, or of the county of San Joaquin: Information on oath having been this day laid before me by Sarah A. Terry that the crime of murder, a felony, has been committed within said county of San Joaquin on the 14th day of August, A. D. 1889, in this, that one David S. Terry, a human being then and there being, was willfully, unlawfully, feloniously, and with malice aforethought, shot, killed, and murdered, and accusing Stephen J. Field and David Neagle thereof, you are therefore commanded forthwith to arrest the above-named Stephen J. Field and David Neagle, and bring them before me, at my office in the city of Stockton, or, in case of my absence or inability to act, before the nearest and most accessible magistrate in the county. Dated at Stockton this 14th day of August, A. D. 1889. H. V. J. SWAIN, Justice of the Peace. 'The defendant, David Neagle, having been brought before me on this warrant, is committed for examination to the sheriff of San Joaquin county, California. Dated August 15, 1889. H. V. J. SWAIN, justice of the Peace.' The petition then recites the circumstances of a rencounter between said Neagle and David S. Terry, in which the latter was instantly killed by two shots from a revolver in the hands of the former. The circumstanceso f this encounter, and of what led to it, will be considered with more particularity hereafter. The main allegation of this petition is that Neagle, as United States deputy-marshal, acting under the orders of Marshal Franks, and in pursuance of instructions from the attorney general of the United States, had, in consequence of an anticipated attempt at violence on the part of Terry against the Honorable STEPHEN J. FIELD, a justice of the supreme court of the United States, been in attendance upon said justice, and was sitting by his side at a breakfast table when a murderous assault was made by Terry on Judge FIELD, and in defense of the life of the judge the homicide was committed for which Neagle was held by Cunningham. The allegation is very distinct that Justice FIELD was engaged in the discharge of his duties as circuit justice of the United States for that circuit, having held court at Los Angeles, one of the places at which the court is by law held, and, having left that court, was on his way to San Francisco for the purpose of holding the circuit court at that place. The allegation is also very full that Neagle was directed by Marshal Franks to accompany him for the purpose of protecting him, and that these orders of Franks were given in anticipation of the assault which actually occurred. It is also stated, in more general terms, thAT MARSHAL NEAGLE, in killing Terry under the circumstances, was in the discharge of his duty as an officer of the United States, and was not, therefore, guilty of a murder, and that his imprisonment under the warrant held by Sheriff Cunningham is in violation of the laws and constitution of the United States, and that he is in custody for an act done in pursuance of the laws of the United States. This petition being sworn to by Farish and presented to Judge SAWYER, he made the following order: 'Let a writ of habeas corpus issue in pursuance of the prayer of the within petition, returnable before the United States circuit court for the northern district of California. SAWYER, Circuit Judge.' The writ was accordingly issued and delivered to Cunningham, who made the following return: 'County of San Joaquin, State of California. Sheriff's Office. To the honorable circuit court of the United States for the Northern District of California: I hereby certify and return that before the coming to me of the annexed writ of habeas corpus the said David Neagle was committed to my custody, and is detained by me by virtue of a warrant issued out of the justice's court of Stockton township, state of California, county of San Joaquin, and by the indorsement made upon said warrant. Copy of said warrant and indorsement is annexed hereto, and made a part of this return. Nevertheless, I have the body of the said David Neagle before the honorable court, as I am in the said writ commanded. August 17, 1889. THOS. CUNNINGHAM, Sheriff San Joaquin County, California.' Various pleadings and amended pleadings were made, which do not tend much to the elucidation of the matter before us. Cunningham filed a demurrer to the petition for the writ of habeas Corpus; and Neagle filed a traverse to the return of the sheriff, which was accompanied by exhibits, the substance of which will be hereafter considered, when the case comes to be examined upon its facts. The hearing in the circuit court was had before Circuit Judge SAWYER and District Judge SABIN. The sheriff, Cunningham, was represented by G. A. Johnson, attorney general of the state of California, and other counsel. A large body of testimony, documentary and otherwise, was submitted to the court, on which, after a full consideration of the subject, the court made the following order: 'In the matter of David Neagle. On habeas corpus. In the above-entitled matter, the court, having heard the testimony introduced on behalf of the petitioner, none having been offered for the respondent, and also the arguments of the counsel for petitioner and respondent, and it appearing to the court that the allegations of the pt itioner in his amended answer or traverse to the return of the sheriff of San Joaquin county, respondent herein, are true, and that the prisoner is in custody for an act done in pursuance of a law of the United States, and in custody in violation of the constitution and laws of the United States, it is therefore ordered that petitioner be, and he is hereby, discharged from custody.' From that order an appeal was allowed, which brings the case to this court, accompanied by a voluminous record of all the matters which were before the court on the hearing. Z. Montgomery, for appellant. [Argument of Counsel from pages 7-12 intentionally omitted] W. H. H. Miller, Atty. Gen., [Argument of Counsel from pages 12-20 intentionally omitted] Jos. H. Choate, and Jas. C. Carter, for appellee. [Argument of Counsel from pages 20-31 intentionally omitted] G. A. Johnson, Atty. Gen. Cal., [Argument of Counsel from pages 31-40 intentionally omitted] If it be true, as stated in this order of the court discharging the prisoner, that he was held 'in custody for an act done in pursuance of a law of the United States, and in custody in violation of the constitution and laws of the United States,' there does not seem to be any doubt that, under the statute on that subject, he was properly discharged by the circuit court. Section 753 of the Revised Statutes reads as follows: 'The writ of habeas corpus1 shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof; or is in custody in violation of the constitution, or of a law or treaty of the United States; or, being a subject or citizen of a foreign state, and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, or order, or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations; or unless it is necessary to bring the prisoner into court to testify.' And section 761 declares that when, by the writ of habeas corpus, the petitioner is brought up for a hearing, the 'court or justice shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require.' This, of course, means that if he is held in custody in violation of the constitution or a law of the United States, or for an act done or omitted in pursuance of a law of the United States, he must be discharged. By the law, as it existed at the time of the enactment of the Revised Statutes, an appeal could be taken to the circuit court from any court of justice or judge inferior to the circuit court in a certain class of habeas corpus cases. But there was no appeal to the supreme court in any case except where the prisoner was the subject or citizen of a foreign state, and was committed or confined under the authority or law of the United States, or of any state, on account of any act done or omitted to be done under the commission or authority of a foreign state, the validity of which depended upon the law of nations. But afterwards, by the act of congress of March 3, 1885, (23 St. 437,) this extended by amendment as follows: 'That section seven hundred and sixty-four of the Revised Statutes be amended so that the same shall read as follows: 'From the final decision of such circuit court an appeal may be taken to the supreme court in the cases described in the preceding section." the preceding section here referred to is section 7632 and is the one on which the prisoner relies for his discharge from custody in this case. It will be observed that in both the provisions of the Revised Statutes and of this latter act of congress the mode of review, whether by the circuit court of the judgment of an inferior court or justice or judge, or by this court of the judgment of a circuit court, the word 'appeal,' and not 'writ of errr ,' is used; and, as congress has always used these words with a clear understanding of what is meant by them, namely, that by a writ of error only questions of law are brought up for review, as in actions at common law, while by an appeal, except when specially provided otherwise, the entire case, on both law and facts, is to be reconsidered, there seems to be little doubt that, so far as it is essential to a proper decision of this case, the appeal requires us to examine into the evidence brought to sustain or defeat the right of the petitioner to his discharge. The history of the incidents which led to the tragic event of the killing of Terry by the prisoner, Neagle, had its origin in a suit brought by William Sharon, of Nevada, in the circuit court of the United States for the district of California, against Sarah Althea Hill, alleged to be a citizen of California, for the purpose of obtaining a decree adjudging a certain instrument in writing possessed and exhibited by her, purporting to be a declaration of marriage between them under the Code of California, to be a forgery, and to have it set aside and annulled. This suit, which was commenced October 3, 1883, was finally heard before Judge SAWYER, the circuit judge for that circuit, and Judge DEADY, United States district judge for Oregon, who had been duly appointed to assist in holding the circuit court for the district of California. The hearing was on September 29, 1885, and on the 15th of January, 1886, a decree was rendered granting the prayer of the bill. In that decree it was declared that the instrument purporting to be a declaration of marriage, set out and described in the bill of complaint, 'was not signed or executed at any time by William Sharon, the complainant; that it is not genuine; that it is false, Counterfeited, Fabricated, forged, and fraudulent, and, as such, is utterly null and void. And it is further ordered and decreed that the respondent, Sarah Althea Hill, deliver up and deposit with the clerk of the court said instrument, to be indorsed 'Canceled,' and that the clerk write across it, 'Cancled,' and sign his name and affix his seal thereto.' The rendition of this decree was accompanied by two opinions; the principal one being written by Judge DEADY, and a concurring one by Judge SAWYER. They were very full in their statement of the fraud and forgery practiced by Miss Hill, and stated that it was also accompanied by perjury; and, inasmuch as Mr. Sharon had died between the hearing of the argument of the case, on the 29th of September, 1885, and the time of rendering this decision, January 15, 1886, an order was made setting forth that fact, and declaring that the decree was entered as of the date of the hearing, nunc pro tunc. Nothing was done under this decree. The defendant, Sarah Althea Hill, did not deliver up the instrument to the clerk to be canceled, but she continued to insist upon its use in the state court. Under these circumstances, Frederick W. Sharon, as the executor of the will of his father, William Sharon, filed in the circuit court for the northern district of California, on March 12, 1888, a bill of revivor, stating the circumstances of the decree, the death of his father, and that the decree had not been performed; alleging, also, the intermarriage of Miss Hill with David S. Terry, of the city of Stockton, in California, and making the said Terry and wife parties to this bill of revivor. The defendants both demurred and answered, resisting the prayer of the plaintiff, and denying that the petitioner was entitled to any relief. This case was argued in the circuit court before FIELD, circuit justice, SAWYER, circuitjudge, and SABIN, district judge. While the matter was held under advisement, Judge SAWYER, on returning from Los Angeles, in the southen district of California, where he had been holding court, found himself on the train as it left Fresno, which is understood to have been THE RESIDENCE of Terry and wife, in a car in which he noticed that Mr. and Mrs. Terry were in a section behind him, on the same side. On this trip from Fresno to San Francisco, Mrs. Terry grossly insulted Judge SAWYER, and had her husband change seats so as to sit directly in front of the judge, while she passed him with insolent remarks, and pulled his hair with a vicious jerk, and then, in an excited manner, taking her seat by her husband's side, said: 'I will give him a taste of what he will get by and by. Let him render this decision if he dares,'—the decision being the one already mentioned, then under advisement. Terry then made some remark about too many witnesses being in the car, adding that 'the best thing to do with him would be to take him out into the bay, and drown him.' These incidents were witnessed by two gentlemen who knew all the parties, and whose testimony is found in the record before us. This was August 14, 1888. On the 3d of September the court rendered its decision granting the prayer of the bill of revivor in the name of Frederick W. Sharon and against Sarah Althea Terry and her husband, David S. Terry. The opinion was delivered by Mr. Justice FIELD, and during its delivery a scene of great violence occured in the court-room. It appears that shortly before the court opened on that day, both the defendants in the case came into the court-room and took seats within the bar at the table next the clerk's desk, and almost immediately in front of the judges. Besides Mr. Justice FIELD, there were present on the bench Judge SAWYER and Judge SABIN, of the district court of the United States for the district of Nevada. The defendants had denied the jurisdiction of the court originally to render the decree sought to be revived, and the opinion of the court necessarily discussed this question, without reaching the merits of the controversy. When allusion was made to this question, Mrs. Terry arose from her seat, and, addressing the justice who was delivering the opinion, asked, in an excited manner, whether he was going to order her to give up the marriage contract to be canceled. Mr. Justice FIELD said: 'Be seated, madam.' She repeated the question, and was again told to be seated. She then said in a very excited and violent manner, that Justice Field had been bought, and wanted to know the price he had sold himself for; that he had got Newland's money for it, and everybody knew that he had got it, or words to that effect. Mr. Justice FIELD then directed the marshal to remove her from the court-room. She asserted that she would not go from the room, and that no one could take her from it. Marshal Franks proceeded to carry out the order of the court by attempting to compel her to leave, when Terry, her husband, arose from his seat under great excitement, exclaiming that no man living should touch his wife, and struck the marshal a blow in his face so violent as to knock out a tooth. He then unbuttoned his coat, thrust his hand under his vest, apparently for the purpose of drawing a bowie-knife, when he was seized by persons present, and forced down on his back. In the meantime Mrs. Terry was removed from the court-room by the marshal, and Terry was allowed to rise, and was accompanied by officers to the door leading to the marshal's office. As he was about leaving the room, or immediately after being out of it, he succeeded in drawing a bowie-knife, when his arms were seized by a Deputy-marshal and others present to prevent him from using it; and they were able to wrench it from him only after a severe struggle. The most prominent person engaged in wresting the knife from Terry was Neagle, the prisoner now in court. For this conduct both Terry and his wife were sentenced by the court to imprisonment for contempt, Mrs. Terry for one month, and Terry for six months; and these sentences were immediately carried into effect. Both the judgmn t of the court on the petition for the revival of the decree in the case of Sharon against Hill, and the judgment of the circuit court imprisoning Terry and wife for contempt, have been brought to this court for review; and in both cases the judgments have been affirmed. The report of the cases may be found in Ex parte Terry, 128 U S. 289, 9 Sup. Ct. Rep. 77, and Terry v. Sharon, 131 U. S. 40, 9 Sup. Ct. Rep. 705. Terry and Mrs. Terry were separately indicted by the grand jury of the circuit court of the United States, during the same term, for their part in these transactions; and the cases were pending in said court at the time of Terry's death. It also appears that Mrs. Terry, during her part of this altercation in the court room, was making efforts to open a small satchel which she had with her, but through her excitement she failed. This satchel, which was taken from her, was found to have in it a revolving pistol. From that time until his death the denunciations by Terry and his wife of Mr. Justice FIELD were open, frequent, and of the most vindictive and malevolent character. While being transported from San Francisco to Alameda, where they were imprisoned, Mrs. Terry repeated a number of times that she would kill both Judge FIELD and Judge SAWYER. Terry, who was present, said nothing to restrain her, but added that he was not through with Judge FIELD yet; and, while in jail at Alameda, Terry said that after he got out of jail he would horsewhip Judge FIELD, and that he did not believe he would ever return to California, but this earth was not large enough to keep him from finding Judge FIELD and horsewhipping him; and, in reply to a remark that this would be a dangerous thing to do, and that Judge FIELD would resent it, he said: 'If Judge FIELD resents it, I will kill him.' And while in jail Mrs. Terry exhibited to a witness Terry's knife, at which he laughed, and said, 'Yes, I always carry that,' and made a remark about judges and marshals, that 'they were all a lot of cowardly curs,' and he would 'see some of them in their graves yet.' Mrs. Terry also said that she expected to kill Judge FIELD some day. Perhaps the clearest expression of Terry's feelings and intentions in the matter was in a conversation with Mr. Thomas T. Williams, editor of one of the daily newspapers of California. This interview was brought about by a message from Terry requesting Williams to call and see him. In speaking of the occurrences in the court, he said that Justice FIELD had put a lie in the record about him, and when he met Field he would have to take that back, 'and if he did not take it back, and apologize for having lied about him, he would slap his face or pull his nose.' 'I said to him,' said the witness, "Judge Terry, would not that be a dangerous thing to do? justice Field is not a man who would permit any one to put a deadly insult upon him, like that.' He said, 'Oh, Field won't fight.' I said: 'Well, judge, I have found nearly all men will fight. Nearly every man will fight when there is occasion for it, and Judge FIELD has had a character in this state of having the courage of his convictions, and being a brave man.' At the conclusion of that branch of the conversation, I said to him: 'Well, Judge FIELD is not your physical equal, and if any trouble shoud occur he would be very likely to use a weapon.' He said: 'Well, that's as good a thing as I want to get.' The whole impression conveyed to me by this conversation was that he felt he had some cause of grievance against Judge FIELD; that he hoped they might meet, that he might have an opportunity to force a quarrel upon him, and he would get him into a fight.' Mr. Williams says that after the return of Justice FIELD to California, in the spring or summer of 1889, he had other conversations with Terry, in which the same vindictive feelings of hatred were manifested and expressed by him. It is useless to go over the testimony on this subject more particulary. It is sufficient to say that the evidence is abundant that both Terry and wife conteml ated some attack upon Judge FIELD during his official visit to California in the summer of 1889, which they intended should result in his death. Many of these matters were published in the newspapers, and the press of California was filled with the conjectures of a probable attack by Terry on Justice FIELD as soon as it became known that he was going to attend the circuit court in that year. So much impressed were the friends of Judge FIELD, and of public justice, both in California and in Washington, with the fear that he would fall a sacrifice to the resentment of Terry and his wife, that application was made to the attorney general of the United States suggesting the propriety of his furnishing some protection to the judge while in California. This resulted in a correspondence between the attorney general of the United States, the district attorney, and the marshal of the northern district of California on that subject. This correspondence is here set out: 'Department of Justice, Washington, April 27th, 1889. John C. Franks, United States Marshal, San Francisco, Cal.—Sir: The proceedings which have heretofore been had in connection with the case of Mr. and Mrs. Terry in your United States circuit court have become matter of public notoriety, and I deem it my duty to call your attention to the propriety of exercising unusual caution, in case further proceedings shall be had in that case, for the protection of his honor, Justice FIELD, or whoever may be called upon to hear and determine the matter. Of course, I do not know what may be the feelings or purpose of Mr. and Mrs. Terry in the premises, but many things which have happened indicate that violence on their part is not impossible. It is due to the dignity and independence of the court, and the character of its judge, that no effort on the part of the government shall be spared to make them feel entirely safe and free from anxiety in the discharge of their high duties. You will understand, of course, that this letter is not for the public, but to put you upon your guard. It will be proper for you to show it to the district attorney if deemed best. Yours, truly, W. H. H. MILLER, Attorney General.' 'United States Marshal's Office, Northern District of California, San Francisco, May 6, 1889. Hon. W. H. H. Miller, Attorney General, Washington, D. C.—Sir: Yours of the 27th ultimo at hand. When the Hon. Judge LORENZO SAWYER, our circuit judge, returned from Los Angeles, some time before the celebrated court scene, and informed me of the disgraceful action of Mrs. Terry to wards him on the cars while her husband sat in front, smilingly approving it, I resolved to watch the Terrys, (and so notified my deputies,) whenever they should enter the courtroom, to be ready to suppress the very first indignity offered by either of them to the judges. After this, at the time of their ejectment from the court-room, when I held Judge Terry and his wife as prisoners in my private office, and heard his threats against Justice FIELD, I was more fully determined than ever to throw around the justice and Judge SAWYER every safeguard I could. I have given the matter careful consideration, with the determination to fully protect the federal Judges at this time, trusting that the department will reimburse me for any reasonable expenditure. I have always, whenever there is any likelihood of either Judge or Mrs. Terry appearing in court, had a force of deputies with myself on hand to watch their every action. You can rest assured that when Justice FIELD arrives he, as well as all the federal judges, will be protected from insults, and where an order is made it will be executed without fear as to consequences. I shall follow your instructions, and act with more than usual caution. I have already consulted with the United States attorney, J. T. Carey, Esq., as to the advisability of making application to you, at the time the Terrys are tried upon criminal charges, for me to select two or more detectives to assist in the case, and also assist me in prt ecting Justice FIELD while in my district. I wish the judges to feel secure, and for this purpose will see to it that their every wish is promptly obeyed. I notice your remarks in regard to the publicity of your letter, and will obey your request. I shall only be too happy to receive any suggestions from you at any time. The opinion among the better class of citizens here is very bitter against the Terrys, though, of course, they have their friends, and, unfortunately, among that class it is necessary to watch. Your most obedient Servant, J. C. FRANKS, U. S. Marshal, Northern Dist. of Cal.' 'San Francisco, Cal., May 7, 1889. Hon. W. H. H. Miller, U. S. Attorney General, Washington, D. C.—Dear Sir: Marshal Franks exhibited to me your letter bearing date the 27th ult., addressed to him upon the subject of using due caution by way of protecting Justice FIELD and the federal judges here in the discharge of their duties in matters in which the Terrys are interested. I noted your suggestion with a great degree of pleasure, not because our marshal is at all disposed to leave anything undone within his authority or power to do, but because it encouraged him to know and feel that the head of our department was in full sympathy with the efforts being made to protect the judges, and vindicate the dignity of our courts. I write merely to suggest that there is just reason, in the light of the past and the threats made by Judge and Mrs. Terry against Justice FIELD and Judge SAWYER, to apprehend personal violence at any moment and at any place, as well in court as out of court, and that, while due caution has always been taken by the marshal when either Judge or Mrs. Terry is about the building in which the courts are held, he has not felt it within his authority to guard either Judge SAWYER or Justice FIELD against harm when away from the appraisers' building. Discretion dictates, however, that a protection should be thrown about them at other times and places, when proceedings are being had before them in which the Terrys are interested; and I verily believe, in view of the direful threats made against Justice FIELD, that he will be in great danger at all times while here. Mr. Franks is a prudent, cool, and courageous officer, who will not abuse any authority granted him. I would therefore suggest that he be authorized, in his discretion, to retain one or more deputies, at such times as he may deem necessary, for the purposes suggested. That publicity may not be given to the matter, it is important that the deputies whom he amy select be not known as such; and, that efficient service may be assured for the purposes indicated, it seems to me that they should be strangers to the Terrys. The Terrys are unable to appreciate that an officer should perform his official duty when that duty in any way requires his efforts to be directed against them. The marshal, his deputies, and myself suffer daily indignities and insults from Mrs. Terry, in court and out of court, committed in the presence of her husband, and without interference upon his part. I do not propose being deterred from any duty, nor do I purpose being intimidated in the least degree from doing my whole duty in the premises; but I shall feel doubly assured in being able to do so knowing that our marshal has your kind wishes and encouragement in doing everything needed to protect the officers of the court in the discharge of their duties. This, of course, is not intended for the public files of your office, nor will it be on file in my office. Prudence dictates great caution on the part of the officials who may be called upon to have anything to do in the premises, and I deem it to be of the greatest importance that the suggestions back and forth be confidential. I shall write you further upon the subject of these cases in a few days. I have the honor to be your most obedient servant, JOHN T. CAREY, U. S. Attorney.' 'Department of Justice, Washington, D. C., May 27, 1889. J. C. Franks, Esq., United States Marshal, San Francisco, Cal.—Sr : Referring to former correspondence of the department relating to a possible disorder in the session of the approaching term of court, owing to the small number of bailiffs under your control to preserve order, you are directed to employ certain special deputies at a per diem of five dollars, payable out of the appropriation for fees and expenses of marshals, to be submitted to the court, as a separate account from your other accounts against the government, for approval, under section 846, Revised Statutes, as an extraordinary expense, that the same may be forwarded to this department in order to secure executive action and approval. Very respectfully, W. H. H. MILLER, Attorney General.' The result of this correspondence was that Marshal Franks appointed Mr. Neagle a deputy-marshal for the northern district of California, and gave him special instructions to attend upon Judge FIELD both in court and while going from one court to another, and protect him from any assault that might be attempted upon him by Terry and wife. Accordingly, when Judge FIELD went from San Francisco to Los Angeles, to hold the circuit court of the United States at that place, Mr. Neagle accompanied him, remained with him for the few days that he was engaged in the business of that court, and returned with him to San Francisco. It appears from the uncontradicted evidence in the case that, while the sleeping-car in which were Justice FIELD and Mr. Neagle stopped a moment, in the early morning, at Fresno, Terry and wife got on the train. The fact that they were on the train became known to Neagle, and he held a conversation with the conductor as to what peace-officers could be found at Lathrop, where the train stopped for breakfast; and the conductor was requested to telegraph to the proper officers of that place to have a constable or some peace-officer on the ground when the train should arrive, anticipating that there might be violence attempted by Terry upon Judge FIELD. It is sufficient to say that this resulted in no available aid to assist in keeping the peace. When the train arrived, Neagle informed Judge FIELD of the presence of Terry on the train, and advised him to remain, and take his breakfast in the car. This the judge refused to do, and he and Neagle got out of the car, and went into the dining-room, and took seats beside each other in the place assigned them by the person in charge of the breakfast-room; and very shortly after this Terry and wife came into the room, and Mrs. Terry, recognizing Judge FELD, turned and left in great haste, while Terry passed beyond where Judge FIELD and Neagle were, and took his seat at another table. It was afterwards ascertained that Mrs. Terry went to the car, and took from it a satchel in which was a revolver. Before she returned to the eating-room, Terry arose from his seat, and, passing around the table in such a way as brought him behind Judge FIELD, who did not see him or notice him, came up where he was sitting with his feet under the table, and struck him a blow on the side of his face, which was repeated on the other side. He also had his arm drawn back and his fist doubled up, apparently to strike a third blow, when Neagle, who had been observing him all this time, arose from his seat with his revolver in his hand, and in a very loud voice shouted out: 'Stop! stop! I am an officer!' Upon this Terry turned his attention to Neagle, and, as Neagle testifies, seemed to recognize him, and immediately turned his hand to thrust it in his bosom, as Neagle felt sure, with the purpose of drawing a bowie-knife. At this instant Neagle fired two shots from his revolver into the body of Terry, who immediately sank down, and died in a few minutes. Mrs. Terry entered the room, with the satchel in her hand, just after Terry sank to the floor. She rushed up to the place where he was, threw herself upon his body, made loud exclamations and moans, and commenced inviting the spectators to avenge her wrong upon Field and Neagle. She appeared to be carried away by passion, and in very earnest manner charged that Field and Neagle had murdered her husband intentionally; and shortly afterwards she appealed to the persons present to examine the body of Terry to see that he had no weapons. This she did once or twice. The satchel which she had, being taken from her, was found to contain a revolver. These are the material circumstances produced in evidence before the circuit court on the hearing of this habeas corpus case. It is but a short sketch of a history which is given in over 500 pages in the record, but we think it is sufficient to enable us to apply the law of the case to the question before us. Without a more minute discussion of this testimony, it produces upon us the conviction of a settled purpose on the part of Terry and his wife, amounting to a conspiracy, to murder Justice FIELD; and we are quite sure that if Neagle had been merely a brother or a friend of Judge FIELD, traveling with him, and aware of all the previous relations of Terry to the judge,—as he was,—of his bitter animosity, his declared purpose to have revenge even to the point of killing him, he would have been justified in what he did in defense of Mr. Justice FIELD'S life, and possibly of his own. But such a justification would be a proper subject for consideration on a trial of the case for murder in the courts of the state of California; and there exists no authority in the courts of the United States to discharge the prisoner while held in custody by the state authorities for this offense, unless there be found in aid of the defense of the prisoner some element of power and authority asserted under the government of the United States. This element is said to be found in the facts that Mr. Justice FIELD, when attacked, was in the immediate discharge of his duty as judge of the circuit courts of the United States within California; that the assault upon him grew out of the animosity of Terry and wife, arising out of the previous discharge of his duty as circuit justice in the case, for which they were committed for contempt of court; and that the deputy-marshal of the United States who killed Terry in defense of Field's life, was charged with a duty, under the law of the United States, to protect Field from the violence which Terry was inflicting, and which was intended to lead to Field's death. To the inquiry whether this proposition is sustained by law and the facts which we have recited, we now address ourselves. MR. JUSTICE FIELD was a member of the supreme court of the United States, and had been a member of that court for over a quarter of a century, during which he had become venerable for his age and for his long and valuable service in that court. The business of the supreme court has become so exacting that for many years past the justices of it have been compelled to remain for the larger part of the year in Washington city, from whatever part of the country they may have been appointed. The term for each year, including the necessary travel and preparations to attend at its beginning, has generally lasted from eight to nine months. But the justices of this court have imposed upon them other duties, the most important of which arise out of the fact that they are also judges of the circuit courts of the United States. of these Circuits there are nine, to each one of which a justice of the supreme court is allotted, under section 606 of the Revised Statutes, the provision of which is as follows: 'The chief justice and associate justices of the supreme court shall be allotted among the circuits by an order of the court; and a new allotment shall be made whenever it becomes necessary or convenient, by reason of the alteration of any circuit, or of the new appointment of a chief justice or associate justice, or otherwise.' Section 610 declares that it 'shall be the duty of the chief justice and of each justice of the supreme court to attend at least one term of the circuit court in each district of the circuit to which he is allotted during every period of two years.' l though this enactment does not require, in terms, that the justices shall go to their circuits more than once in two years, the effect of it is to compel most of them to do this, because there are so many districts in many of the circuits that it is impossible for the circuit justice to reach them all in one year; and the result of this is that he goes to some of them in one year, and to others in the next year thus requiring an attendance in the circuit every year. The justices of the supreme court have been members of the circuit courts of the United States ever since the organization of the government; and their attendance of the circuit, and appearance at the places where the courts are held, has always been thought to be a matter of importance. In order to enable him to perform this duty, Mr. Justice FIELD had to travel each year from Washington city, near the Atlantic coast, to San Francisco, on the Pacific coast. In doing this, he was as much in the discharge of a duty imposed upon him by law as he was while sitting in court and trying causes. There are many duties which the judge performs outside of the courtroom where he sits to pronounce judgment or to preside over a trial. The statutes of the United States, and the established practice of the courts, require that the judge perform a very large share of his judicial labors at what is called 'chambers.' This chamber work is as important, as necessary, as much a discharge of his official duty, as that performed in the courthouse. Important cases are often argued before the judge at any place convenient to the parties concerned, and a decision of the judge is arrived at by investigations made in his own room, wherever he may be; and it is idle to say that this is not as much the performance of judicial duty as the filing of the judgment with the clerk, and the announcement of the result in open court. So it is impossible for a justice of the supreme court of the United States, who is compelled by the obligations of duty to be so much in Washington city, to discharge his duties of attendance on the circuit courts, as prescribed by section 610, without traveling, in the usual and most convenient modes of doing it, to the place where the court is to be held. This duty is as much an obligation imposed by the law as if it had said in words: 'The justices of the supreme court shall go from Washington city to the place where their terms are held every year.' Justice FIELD had not only left Washington, and traveled the 3,000 miles or more which was necessary to reach his circuit, but he had entered upon the duties of that circuit, had held the court at San Francisco for some time, and, taking a short leave of that court, had gone down to Los Angeles, another place where a court was to be held, and sat as a judge there for several days, hearing cases and rendering decisions. It was in the necessary act of returning from Los Angeles to San Francisco, by the usual mode of travel between the two places, where his court was still in session, and where he was required to be, that he was assaulted by Terry in the manner which we have already described. The occurrence which we are called upon to consider was of so extraordinary a character that it is not to be expected that many cases can be found to cite as authority upon the subject. In the case of U. S. v. The Little Charles, 1 Brock. 380, a question arose before Chief Justice MARSHALL, holding the circuit court of the United States for Virginia, as to the validity of an order made by the district judge at his chambers, and not in court. The act of congress authorized stated terms of the district court, and gave the judge power to hold special courts, at his discretion either at the place appointed by the law or such other place in the district as the nature of the business and his discretion should direct. He says: 'It does not seem to be a violent construction of such an act to consider the judge as constituting a court whenever he proceeds on judicial business;' and cites the practice of the cours in support of that view of the subject. In the case of U. S. v. Gleason, 1 Woolw. 128, the prisoner was indicted for the murder of two enrolling officers who were charged with the duty of arresting deserters, or those who had been drafted into the service and had failed to attend. These men, it was said, had visited the region of country where they were murdered, and, having failed of accomplishing their purpose of arresting the deserters, were on their return to their home when they were killed; and the court was asked to instruct the jury that under these circumstances they were not engaged in the duty of arresting the deserters named. 'It is claimed by the counsel for the defendant,' says the report, 'that if the parties killed had been so engaged, and had come to that neigborhood with the purpose of arresting the supposed deserters, but at the moment of the assault had abandoned the intention of making the arrests at that time, and were returning to headquarters at Grinnell with a view to making other arrangements for arrest at another time, they were not so engaged as to bring the case within the law.' But the court held that this was not a sound construction of the statute, and 'that if the parties killed had come into that neighborhood with intent to arrest the deserters named, and had been employed by the proper officer for that service, and were, in the further prosecution of that purpose, returning to Grinnell with a view to making other arrangements to discharge this duty, they were still employed in arresting deserters, within the meaning of the statute. It is not necessary,' said the court, 'that the party killed should be engaged in the immediate act of arrest, but it is sufficient if he be employed in and about that business when assaulted. The purpose of the law is to protect the life of the person so employed, and this protection continues so long as he is engaged in a service necessary and Proper to that employment.' We have no doubt that Mr. Justice FIELD, when attacked by Terry, was engaged in the discharge of his duties as circuit justice of the ninth circuit, and was entitled to all the protection, under those circumstances, which the law could give him. It is urged, however, that there exists no statute authorizing any such protection as that which Neagle was instructed to give Judge FIELD in the present case, and, indeed, no protection whatever against a vindictive or malicious assault growing out of the faithful discharge of his official duties; and that the language of section 753 of the Revised Statutes, that the party seeking the benefit of the writ of habeas corpus must, in this connection, show that he is 'in custody for an act done or omitted in pursuance of a law of the United States,' makes it necessary that upon this occasion it should be shown that the act for which Neagle is imprisoned was done by virtue of an act of congress. It is not supposed that any special act of congress exists which authorizes the marshals or deputy-marshals of the United States, in express terms, to accompany the judges of the supreme court through their circuits, and act as a bodyguard to them, to defend them against malicious assaults against their persons. But we are of opinion that this view of the statute is an unwarranted restriction of the meaning of a law designed to extend in a liberal manner the benefit of the writ of habeas corpus to persons imprisoned for the performance of their duty; and we are satisfied that, if it was the duty of Neagle, under the circumstances,—a duty which could only arise under the laws of the United States,—to defend Mr. Justice FIELD from a murderous attack upon him, he brings himself within the meaning of the section we have recited. This view of the subject is confirmed by the alternative provision that he must be in custody 'for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or a judge thereof, or is in custody in violation of the constitution or of a law or treaty o the United States.' in the view we take of the Constitution of the United states, any obligation fairly and properly inferable from that instrument, or any duty of the marshal to be derived from the general scope of his duties under the laws of the United States, is a 'law,' within the meaning of this phrase. It would be a great reproach to the system of government of the United States, declared to be within its sphere sovereign and supreme, if there is to be found within the domain of its powers no means of protecting the judges, in the conscientious and faithful discharge of their duties, from the malice and hatred of those upon whom their judgments may operate unfavorably. It has in modern times become apparent that the physical health of the community is more efficiently promoted by hygienic and preventive means than by the skill which is applied to the cure of disease after it has become fully developed. So, also, the law, which is intended to prevent crime, in its general spread among the community, by regulations, police organization, and otherwise, which are adapted for the protection of the lives and property of citizens, for the dispersion of mobs, for the arrest of thieves and assassins, for the watch which is kept over the community, as well as over this class of people, is more efficient than punishment of crimes after they have been committed. If a person in the situation of Judge FIELD could have no other guaranty of his personal safety while engaged in the conscientious discharge of a disagreeable duty than the fact that, if he was murdered, his murderer would be subject to the laws of a state, and by those laws could be punished, the security would be very insufficient. The plan which Terry and wife had in mind, of insulting him and assaulting him, and drawing him into a defensive physical contest, in the course of which they would slay him, shows the little value of such remedies. We do not believe that the government of the United States is thus inefficient, or that its constitution and laws have left the high officers of the government so defenseless and unprotected. The views expressed by this court, through Mr. Justice Bradley, In ex parte Siebold, 100 U. S. 371, 394, are very pertinent to this subject, and express our views with great force. That was a case of a writ of habeas corpus, where Siebold had been indicted in the Circuit Court of the United States for the district of Maryland for an offense committed against the election laws during an election at which members of congress and officers of the state of Maryland were elected. He was convicted, and sentenced to fine and imprisonment, and filed his petition in this court for a writ of habeas corpus, to be relieved on the ground that the court which had convicted him was without jurisdiction. The foundation of this allegation was that the congress of the United States had no right to prescribe laws for the conduct of the election in question, or for enforcing the laws of the state of Maryland by the courts of the United States. In the course of the discussion of the relative powers of the federal and state courts on this subject, it is said: 'Somewhat akin to the argument which has been considered is the objection that the deputymarshals authorized by the act of congress to be created, and to attend the elections, are authorized to keep the peace, and that this is a duty which belongs to the state authorities alone. It is argued that the preservation of peace and good order in society is not within the powers confined to the government of the United States, but belongs exclusively to the states. Here, again, we are met with the theory that the government of the United States does not rest upon the soil and territory of the country. We think that this theory is founded on an entire misconception of the nature and powers of that government. We hold it to be an incontrovertible principle that the government of the United States may, by means of physical force , exercised through its official agents execute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent. This power to enforce its laws and to execute its functions in all places does not derogate from the power of the state to execute its laws at the same time and in the same places. The one does not exclude the other, except where both cannot be executed at the same time. In that case the words of the constitution itself show which is to yield. 'This constitution, and all laws which shall be made in pursuance thereof, * * * shall be the supreme law of the land.' * * * Without the concurrent sovereignty referred to, the national government would be nothing but an advisory government. Its executive power would be absolutely nullified. Why do we have marshals at all, if they cannot physically lay their hands on persons and things in the performance of their proper duties? What functions can they perform, if they cannot use force? In executing the process of the courts, must they call on the nearest constable for protection? Must they rely on him to use the requisite compulsion, and to keep the peace, whilst they are soliciting and entreating the parties and by-standers to allow the law to take its course? This is the necessary consequence of the positions that are assumed. If we indulge in such impracticable views as these, and keep on refining and re-refining, we shall drive the national government out of the United States, and relegate it to the District of Columbia, or perhaps to some foreign soil. We shall bring it back to a condition of greater helplessness than that of the old confederation. * * * It must execute its powers, or it is no government. It must execute them on the land as well as on the sea, on things as well as on persons. And, to do this, it must necessarily have power to command obedience, preserve order, and keep the peace; and no person or power in this land has the right to resist or question its authority, so long as it keeps within the bounds of its jurisdiction.' At the same term of the court, in the case of Tennessee v. Davis, 100 U. S. 257, 262, where the same questions in regard to the relative powers of the federal and state courts were concerned, in regard to criminal offenses, the court expressed its views through Mr. Justice STRONG, quoting from the case of Martin v. Hunter, 1 Wheat. 363, the following language: 'The general government must cease to exist whenever it loses the power of protecting itself in the exercise of itsconstitutional powers,' and then proceeding: 'It can act only through its officers and agents, and they must act within the states. If, when thus acting, and within the scope of their authority, those officers can be arrested and brought to trial in a state court for an alleged offense against the law of the state, yet warranted by the federal authority they possess, and if the general government is powerless to interfere at once for their protection,—if their protection must be left to the action of the state court,—the operations of the general government may at any time be arrested at the will of one of its members. The legislation of a state may be unfriendly. It may affix penalties to acts done under the immediate direction of the national government and in obedience to its laws. It may deny the authority conferred by those laws. The state court may administer not only the laws of the state, but equally federal law, in such a manner as to paralyze the operations of the government; and even if, after trial and final judgment in the state court, the case can be brought into the United States court for review, the officer is withdrawn from the discharge of his duty during the pendency of the prosecution, and the exercise of acknowledged federal power arrested. We do not think such an element of weakness is to be found in the constitution. The United States is a government with authority extending over the whole territory of the Union, actingu pon the states and upon the people of the states. While it is limited in the number of its powers, so far as its sovereignty extends, it is supreme. No state government can exclude it from the exercise of any authority conferred upon it by the constitution, obstruct its authorized officers against its will, or withhold from it for a moment the cognizance of any subject which that instrument has committed to it.' To cite all the cases in which this principle of the supremacy of the government of the United States in the exercise of all the powers conferred upon it by the constitution is maintained, would be an endless task. We have selected these as being the most forcible expressions of the views of the court, having a direct reference to the nature of the case before us. Where, then, are we to look for the protection which we have shown Judge FIELD was entitled to when engaged in the discharge of his official duties? Not to the courts of the United States, because, as has been more than once said in this court, in the division of the powers of government between the three great departments, executive, legislative, and judicial, the judicial is the weakest for the purposes of self-protection, and for the enforcement of the powers which it exercises. The ministerial officers through whom its commands must be executed are marshals of the United States, and belong emphatically to the executive department of the government. They are appointed by the president, with the advice and consent of the senate. They are removable from office at his pleasure. They are subjected by act of congress to the supervision and control of the department of justice, in the hands of one of the cabinet officers of the president, and their compensation is provided by acts of congress. The same may be said of the district attorneys of the United States who prosecute and defend the claims of the government in the courts. The legislative branch of the government can only protect the judicial officers by the enactment of laws for that purpose, and the argument we are now combating assumes that no such law has been passed by congress. If we turn to the executive department of the government, we find a very different condition of affairs. The constitution, § 3, art. 2, declares that the president 'shall take care that the laws be faithfully executed;' and he is provided with the means of fulfilling this obligation by his authority to commission all the officers of the United States, and, by and with the advice and consent of the senate, to appoint the most important of them, and to fill vacancies. He is declared to be the commander in chief of the army and navy of the United States. The duties which are thus imposed upon him he is further enabled to perform by the recognition in the constitution, and the creation by acts of congress, of executive departments, which have varied in number from four or five to seven or eight, who are familiarly called 'cabinet ministers.' These aid him in the performance of the great duties of his office, and represent him in a thousand acts to which it can hardly be supposed his personal attention is called; and thus he is enabled to fulfill the duty of his great department, expressed in the phrase that 'he shall take care that the laws be faithfully executed.' Is this duty limited to the enforcement of acts of congress or of treaties of the United States according to their express terms; or does it include the rights, duties, and obligations growing out of the constitution itself, our international relations, and all the protection implied by the nature of the government under the constitution? One of the most remarkable episodes in the history of our foreign relations, and which has become an attractive historical incident, is the case of Martin Koszta, a native of Hungary, who, though not fully a naturalized citizen of the United States, had in due form of law made his declaration of intention to become a citizen. While in Smyrna he was seized by command of the Austrian consu- general at that place, and carried on board the Hussar, an Austrian vessel, where he was held in close confinement. Capt. Ingraham, in command of the American sloop of war St. Louis, arriving in port at that critical period, and ascertaining that Koszta had with him his naturalization papers, demanded his surrender to him, and was compelled to train his guns upon the Austrian vessel before his demands were complied with. It was, however, to prevent bloodshed, agreed that Koszta should be placed in the hands of the French consul subject to the result of diplomatic negotiations between Austria and the United States. The celebrated correspondence between Mr. Marcy, secretary of state, and Chevalier Hulsemann, the Austrian minister at Washington, which arose out of this affair, and resulted in the release and restoration to liberty of Koszta, attracted a great deal of public attention; and the position assumed by Mr. Marcy met the approval of the country and of congress, who voted a gold medal to Capt. Ingraham for his conduct in the affair. Upon what act of congress then existing can any one lay his finger in support of the action of our government in this matter? So, if the president or the postmaster general is advised that the mails of the United States, possibly carrying treasure, are liable to be robbed, and the mail carriers assaulted and murdered, in any particular region of country, who can doubt the authority of the president, or of one of the executive departments under him, to make an order for the protection of the mail, and of the persons and lives of its carriers, by doing exactly what was done in the case of Mr. Justice FIELD, namely, providing a sufficient guard, whether it be by soldiers of the army or by marshals of the United States, with a posse comitatus properly armed and equipped, to secure the safe performance of the duty of carrying the mail wherever it may be intended to go? The United States is the owner of millions of acres of valuable public land, and has been the owner of much more, which it has sold. Some of these lands owe a large part of their value to the forests which grow upon them. These forests are liable to depredations by people living in the neighborhood, known as 'timber thieves,' who make a living by cutting and selling such timber, and who are trespassers. But until quite recently, even if there be one now, there was no statute authorizing any preventive measures for the protection of this valuable public property. Has the president no authority to place guards upon the public territory to protect its timber? No authority to seize the timber when cut and found upon the ground? Has he no power to take any measures to protect this vast domain? Fortunately, we find this question answered by this court in the case of Wells v. Nickles, 104 U. S. 444. That was a case in which a class of men appointed by local land-officers, under instructions from the secretary of the interior, having found a large quantity of this timber cut down from the forests of the United States, and lying where it was cut, seized it. The question of the title to this property coming in controversy between Wells and Nickles, it became essential to inquire into the authority of these timber agents of the government, thus to seize the timber cut by trespassers on its lands. The court said: 'The effort we have made to ascertain and fix the authority of these timber agents by any positive provision of law has been unsuccessful.' But the court, notwithstanding there was no special statute for it, held that the department of the interior, acting under the idea of protecting from depredation timber on the lands of the government, had gradually come to assert the right to seize what is cut and taken away from them wherever it can be traced, and in aid of this the registers and receivers of the land-office had, by instructions from the secretary of the interior, been constituted agents of the United States for these purposes, with power to appoint special agents under themsele s. And the court upheld the authority of the secretary of the interior to make these rules and regulations for the protection of the public lands. One of the cases in this court in which this question was presented in the most imposing form is that of U. S. v. Tin Co., 125 U. S. 273, 8 Sup. Ct. Rep. 850. In that case a suit was brought in the name of the United States, by order of the attorney general, to set aside a patent which had been issued for a large body of valuable land, on the ground that it was obtained from the government by fraud and deceit practiced upon its officers. A preliminary question was raised by counsel for defendant, which was earnestly insisted upon, as to the right of the attorney general or any other officer of the government to institute such a suit in the absence of any act of congress authorizing it. It was conceded that there was no express authority given to the attorney general to institute that particular suit, or any suit of that class. The question was one of very great interest, and was very ably argued both in the court below and in this court. The response of this court to that suggestion conceded that in the acs of congress establishing the department of justice and defining the duties of the attorney general there was no such express authority; and it was said that there was also no express authority to him to bring suits against debtors of the government upon bonds, or to begin criminal prosecutions, or to institute criminal proceedings in any of the cases in which the United States was plaintiff, yet he was invested with the general superintendence of all such suits. It was further said:'If the United States, in any particular case, has a just cause for calling upon the judiciary of the country, in any of its courts, for relief, by setting aside or annulling any of its contracts, its obligations, or its most solemn instruments, the question of the appeal to the judicial tribunals of the country must primarily be decided by the attorney general of the United States. That such a power should exist somewhere, and that the United States should not be more helpless in relieving itself from frauds, impostures, and deceptions than the private individual, is hardly open to argument. * * * There must, then, be an officer or officers of the government to determine when the United States shall sue, to decide for what it shall sue, and to be responsible that such suits shall be brought in appropriate cases. The attorneys of the United States in every judicial district are officers of this character, and they are by statute under the immediate supervision and control of the attorney general. How, then, can it be argued that if the United States has been deceived, entrapped, or defrauded into the making, under the forms of law, of an instrument which injuriously affects its rights of property, or other rights, it cannot bring a suit to avoid the effect of such instrument thus fraudulently obtained without a special act of congress in each case, or without some special authority applicable to this class of cases?' The same question was raised in the earlier case of U. S. v. Hughes, 11 How. 552, and decided the same way. We cannot doubt the power of the president to take measures for the protection of a judge of one of the courts of the United States who, while in the discharge of the duties of his office, is threatened with a personal attack which may probably result in his death; and we think it clear that where this protection is to be afforded through the civil power, the department of justice is the proper one to set in motion the necessary means of protection. The correspondence, already recited in this opinion, between the marshal of the northern district of California and the attorney general and the district attorney of the United States for that district, although prescribing no very specific mode of affording this protection by the Attorney General, is sufficient, we think, to warrant the marshal in taking the steps which he did take, in making the proi sions which he did make, for the protection and defense of Mr. Justice FIELD. But there is positive law investing the marshals and their deputies with powers which not only justify what Marshal Neagle did in this matter, but which imposed it upon him as a duty. In chapter 14, title 13, of the Revised Statutes of the United States, which is devoted to the appointment and duties of the district attorneys, marshals, and clerks of the courts of the United States, section 788 declares: 'The marshals and their deputies shall have, in each state, the same powers in executing the laws of the United States as the sheriffs and their deputies in such state may have, by law, in executing the laws thereof.' If, therefore, a sheriff of the state of California was authorized to do in regard to the laws of California what Neagle did,—that is, if he was authorized to keep the peace, to protect a judge from assault and murder,—then Neagle was authorized to do the same thing in reference to the laws of the United States. Section 4176 of the Political code of California reads as follows: 'The sheriff must (1) preserve the peace; (2) arrest and take before the nearest magistrate, for examination, all persons who attempt to commit, or have committed, a public offense; (3) prevent and suppress all affrays, breaches of the peace, riots, and insurrections which may come to his knowledge.' And the Penal Code of California declares (section 197) that homicide is justifiable when committed by any person 'when resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person,' or 'when committed in defense of habitation, property, or person against one who manifestly intends or endeavors, by violence or surprise, to commit a felony.' that there is a peace of the United States; that a man assaulting a judge of the United States while in the discharge of his duties violates that peace; that in such case the marshal of the United States stands in the same relation to the peace of the United States which the sheriff of the county does to the peace of the state of California,—are questions too clear to need argument to prove them. That it would be the duty of a sheriff, if one had been present at this assault by Terry upon Judge FIELD, to prevent this breach of the peace, to prevent this assault, to prevent the murder which was contemplated by it, cannot be doubted. And if, in performing his duty, it became necessary, for the protection of Judge FIELD or of himself, to kill Terry, in a case where, like this, it was evidently a question of the choice of who should be killed,—the assailant and violator of the law and disturber of the peace, or the unoffending man who was in his power.—there can be no question of the authority of the sheriff to have killed Terry. So the marshal of the United States, charged with the duty of protecting and guarding the judge of the United States court against this special assault upon his person and his life, being present at the critical moment, when prompt action was necessary, found it to be his duty—a duty which he had no liberty to refuse to perform—to take the steps which resulted in Terry's death. This duty was imposed on him by the section of the Revised Statutes which we have recited, in connection with the powers conferred by the state of California upon its peace officers, which become, by this statute, in proper cases, transferred as duties to the marshals of the United States. But, all these questions being conceded, it is urged against the relief sought by this writ of habeas corpus that the question of the guilt of the prisoner of the crime of murder is a question to be determined by the laws of California, and to be decided by its courts, and that there exists no power in the government of the United States to take away the prisoner from the custody of the proper authorities of the state of California, and carry him before a judge of the court of the United States, and release him without a trial by jury according to the laws of the state of California. that the statute of the United States authorizes and directs such a proceeding and such a judgment in a case where the offense charged against the prisoner consists in an act done in pursuance of a law of the United States, and by virtue of its authority, and where the imprisonment of the party is in violation of the constitution and laws of the United States, is clear by its express language. The enactments now found in the Revised Statutes of the United States on the subject of the writ of habeas corpus are the result of a long course of legislation forced upon congress by the attempt of the states of the Union to exercise the power of imprisonment over officers and other persons asserting rights under the federal government or foreign governments, which the states denied. The original act of congress on the subject of the writ of habeas corpus, by its fourteenth section, authorized the judges and the courts of the United States, in the case of prisoners in jail or in custody under or by color of the authority of the United States, or committed for trial before some court of the same, or when necessary to be brought into court to testify, to issue the writ, and the judge or court before whom they were brought was directed to make inquiry into the cause of commitment. 1 St. 81. This did not present the question, or at least it gave rise to no question which came before the courts, as to releasing by this writ parties held in custody under the laws of the states. But when, during the controversy growing out of the nullification laws of South Carolina, officers of the United States were arrested and imprisoned for the performance of their duties in collecting the revenue of the United States in that state and held by the state authorities, it became necessary for the congress of the United States to take some action for their relief. Accordingly the act of congress of March 2, 1833, (4 St. 634,) among other remedies for such condition of affairs, provided by its seventh section that the federal judges should grant writs of habeas corpus in all cases of a prisoner in jail or confinement, where he should be committed or confined on or by any authority or law for any act done or omitted to be done in pursuance of a law of the United States, or any order, process, or decree of any judge or court thereof. The next extension of the circumstances on which a writ of corpus habeas might issue by the federal judges arose out of the celebrated McLeod Case, in which McLeod, charged with murder, in a state court of New York, had pleaded that he was a British subject, and that what he had done was under and by the authority of his government, and should be a matter of international adjustment, and that he was not subject to be tried by a court of New York under the laws of that state. The federal government acknowledged the force of this reasoning, and undertook to obtain from the government of the state of New York the release of the prisoner, but failed. He was, however, tried and acquitted, and afterwards released by the state of New York. This led to an extension of the powers of the federal judges under the writ of habeas corpus by the act of August 29, 1842, (5 St. 539,) entitled 'An act to provide further remedial justice in the courts of the United States.' It conferred upon them the power to issue a writ of habeas corpus in all cases where the prisoner claimed that the act for which he was held in custody was done under the sanction of any foreign power, and where the validity and effect of this plea depended upon the law of nations. In advocating the bill, which afterwards became a law on this subject, Senator Berrien, who introduced it into the senate, observed: 'The object was to allow a foreigner prosecuted in one of the states of the Union for an offense committed in that state, but which, he pleads, has been committed under authority of his own so vereignty or the authority of the law of nations, to be brought up on that issue e fore the only competent judicial power to decide upon matters involved in foreign relations or the law of nations. The plea must show that it has reference to the laws or treaties of the United States or the law of nations; and showing this, the writ of habeas corpus is a warded to try that issue. If it shall appear that the accused has a bar on the plea alleged, it is right and proper that he should not be delayed in prison, awaiting the proceedings of the state jurisdiction in the preliminary issue of his plea at bar. If satisfied of the existence in fact and validity in law of the bar, the federal jurisdiction will have the power of administering prompt relief.' No more foreible statement of the principle on which the law of the case now before us stands can be made. The next extension of the powers of the court under the writ of habeas corpus was the act of February 5, 1867, (14 St. 385;) and this contains the broad ground of the present Revised Statutes, under which the relief is sought in the case before us, and includes all cases of restraint of liberty in violation of the constitution or a law or treaty of the United States, and declares that 'the said court or judge shall proceed in a summary way to determine the facts of the case, by hearing testimony and the arguments of the parties interested, and, if it shall appear that the petitioner is deprived of his or her liberty in contravention of the constitution or laws of the United States, he or she shall forthwith be discharged and set at liberty.' It would seem as if the argument might close here. If the duty of the United States to protect its officers from violence, even to death, in discharge of the duties which its laws impose upon them, be established, and congress has made the writ of habeas corpus one of the means by which this protection is made efficient, and if the facts of this case show that the prisoner was acting both under the authority of law and the directions of his superior officers of the department of justice, we can see no reason why this writ should not be made to serve its purpose in the present case. We have already cited such decisions of this court as are most important and directly in point, and there is a series of cases decided by the circuit and district courts to the same purport. Several of these arose out of proceedings under the fugitive slave law, in which the marshal of the United States, while engaged in apprehending the fugitive slave with a view to returning him to his master in another state, was arrested by the authorities of the state. In many of these cases they made application to the judges of the United States for relief by the writ of habeas corpus, which gave rise to several very interesting decisions on this subject. In Ex parte Jenkins, 2 Wall. Jr. 521, 529, the marshal, who has been engaged, while executing a warrant, in arresting a fugitive, in a bloody encounter, was himself arrested under a warrant of a justice of the peace for assault with intent to kill, which makes the case very analogous to the one now under consideration. He presented to the circuit court of the United States for the eastern district of Pennsylvania a petition for a writ of habeas corpus, which was heard before Mr. Justice GRIER, who held that under the act of 1833, already referred to, the marshal was entitled to his discharge, because what he had done was in pursuance of and by the authority conferred upon him by the act of congress concerning the rendition of fugitive slaves. He said: 'The authority conferred on the judges of the United States by this act of congress gives them all the power that any other court could exercise under the writ of habeas corpus, or gives them none at all. if, under suCh a writ, they may not discharge their officer when imprisoned 'by any authority' for an act done in pursuance of a law of the United States, it would be impossible to discover for what useful purpose the act was passed. * * * It was passed when a certain state of this Union had threae ned to nullify acts of congress, and to treat those as criminals who should attempt to execute them; and it was intended as a remedy against such state legislation.' This same matter was up again when the fugitive slave, Thomas, had the marshal arrested in a civil suit for an alleged assault and battery. He was carried before Judge KANE on another writ of habeas corpus, and again released. id. 531. a third time the marshal, being indicted, was arrested on a bench warrant issued by the state court, and again brought before the circuit court of the United States by a writ of habeas corpus, and discharged. Some remarks of Judge KANE on this occasion are very pertinent to the objections raised in the present case. He said (Id. 543:) 'It has been urged that my order, if it shall withdraw the relators from the prosecution pending against them, [in the state court,] will, in effect, Prevent their trial by jury at all, since there is no act of congress under which they can be indicted for an abuse of process. It will not be an anomaly, however, if the action of this court shall interfere with the trial of these prisoners by a jury. Our constitutions secure that mode of trial as a right to the accused; but they nowhere recognize it as a right of the government, either state or federal, still less of an individual prosecutor. The action of a jury is overruled constantly by the granting of new trials after conviction. It is arrested by the entering of nolle prosequis while the case is at bar. It is made Ineffectual at any time by the discharge on habeas corpus. * * * And there is no harm in this. No one imagines that because a man is accused he must therefore, of course, be tried. Public prosecutions are not devised for the purpose of indemnifying the wrongs of individuals, still less of retaliating them.' Many other decisions by the circuit and district courts to the same purport are to be found, among them the following: Ex parte Robinson, 6 McLean, 355; U. S. v. Jailer of Fayette Co., 2 Abb. U. S. 265; Ramsey v. Jailer of Warren Co., 2 Flip. 451. In re Neill, 8 Blatchf. 156; Ex parte Bridges, 2 Woods, 428; Ex parte Royall, 117 U.S. 241, 6 Sup. Ct. Rep. 734. Similar language was used by Mr. Choate in the senate of the United States upon the passage of the act of 1842. He said: 'If you have the power to interpose after judgment, you have the power to do so before. If you can reverse a judgment, you can anticipate its rendition. If, within the constitution, your judicial power extends to these cases or these controversies, whether you take hold of the case or controversy at one stage or another is totally immaterial. The single question submitted to the national tribunal, the question whether, under the statute adopting the law of nations, the prisoner is entitled to the exemption or immunity he claims, may as well be extracted from the entire case, and presented and decided in those tribunals before any judgment in the state court, as for it to be revised afterwards on a writ of error. Eitherway, they pass on no other question. Either way, they do not administer the criminal law of a state. In the one case as much as in the other, and no more, do they interfere with state judicial power.' The same answer is given in the present case. To the objection, made in argument, that the prisoner is discharged by this writ from the power of the state court to try him for the whole offense, the reply is that if the prisoner is held in the state court to answer for an act which he was authorized to do by the law of the United States, which it was his duty to do as marshal of the United States, and if, in doing that act, he did no more than what was necessary and proper for him to do, he cannot be guilty of a crime under the law of the state of California. When these things are shown, it is established that he is innocent of any crime against the laws of the state, or of any other authority whatever. There is no occasion for any further trial in the state court, or in any court. The circi t court of the United States was as competent to ascertain these facts as any other tribunal, and it was not at all necessary that a jury should be impaneled to render a verdict on them. It is the exercise of a power common under all systems of criminal jurisprudence. There must always be a preliminary examination by a committing magistrate, or some similar authority, as to whether there is an offense to be submitted to a jury; and, if this is submitted in the first instance to a grand jury, that is still not the right of trial by jury which is insisted on in the present argument. We have thus given, in this case, a most attentive consideration to all the questions of law and fact which we have thought to be properly involved in it. We have felt it to be our duty to examine into the facts with a completeness justified by the importance of the case, as well as from the duty imposed upon us by the statute, which we think requires of us to place ourselves, as far as possible, in the place of the circuit court, and to examine the testimony and the arguments in it, and to dispose of the party as law and justice require. The result at which we have arrived upon this examination is that, in the protection of the person and the life of Mr. Justice FIELD while in the discharge of his official duties, Neagle was authorized to resist the attack of Terry upon him; that Neagle was correct in the belief that, without prompt action on his part, the assault of Terry upon the judge would have ended in the death of the latter; that, such being his well-founded belief, he was justified in taking the life of Terry, as the only means of preventing the death of the man who was intended to be his victim; that in taking the life of Terry, under the circumstances, he was acting under the authority of the law of the United States, and was justified in so doing; and that he is not liable to answer in the courts of California on account of his part in that transaction. We therefore affirm the judgment of the circuit court authorizing his discharge from the custody of the sheriff of San Joaquin county. FIELD, J., did not sit at the hearing of this case, and took no part in its decision. The chief justice and myself are unable to assent to the conclusion reached by the majority of the court. Our dissent is not based on any conviction as to the guilt or innocence of the appellee. The view which we take renders that question immaterial to the inquiry presented by this appeal. That inquiry is whether the appellee, Neagle, shall in this ex parte proceeding be discharged and delivered from any trial or further inquiry in any court, state or federal, for what he has been accused of in the forms prescribed by the constitution and laws of the state in which the act in question was committed. Upon that issue, we hold to the principle announced by this court in the case of Ex parte Crouch, 112 U. S. 178, 180, 5 Sup. Ct. Rep. 96, in which Mr. Chief Justice WAITE, delivering the opinion of the court, said: 'It is elementary learning that, if a prisoner is in the custody of a state court of competent jurisdiction, not illegally asserted, he cannot be taken from that jurisdiction and discharged on habeas corpus issued by a court of the United States simply because he is not guilty of the offense for which he is held. All questions which may arise in the orderly course of the proceeding against him are to be determined by the court to whose Jurisdiction he has been subjected, and no other court is authorized to interfere to prevent it. Here the right of the prisoner to a discharge depends alone on the sufficiency of his defense to the information under which he is held. Whether his defense is sufficient or not is for the court which tries him to determine. If, in this determination, errors are committed, they can only be corrected in an appropriate form of proceeding for that purpose. The office of a writ of habeas corpus is neither to correct such errors, nor to take the prio ner away from the court which holds him for trial, for fear, if he remains, they may be committed. Authorities to this effect in our reports are numerous. Ex parte Watkins, 3 Pet. 202; Ex parte Lange, 18 Wall. 163, 166; Ex parte Parks, 93 U. S. 18, 23; Ex parte Siebold, 100 U. S. 371, 374; Ex parte Virginia, Id. 339, 343; Ex parte Rowland, 104 U. S. 604, 612; Ex parte Curtis, 106 U. S., 371, 375, 1 Sup. Ct. Rep. 381; Ex parte Yarbrough, and that it would be a great reproach to 152.' Many of the propositions advanced in behalf of the appellee, and urged with impressive force, we do not challenge. We do not question, for instance, the soundness of the elaborate discussion of the history of the office and function of the writ of habeas corpus, its operation under and by virtue of section 753 of the Revised Statutes, or the propriety of its use in the manner and for the purposes for which it has been used in any case where the prisoner is under arrest by a state for an act done 'in pursuance of a law of the United States.' Nor do we contend that any objection arises to such use of the writ, and based merely on that fact, in cases where no provision is made by the federal law for the trial and conviction of the accused. Nor do we question the general propositions that the federal government established by the constitution is absolutely sovereign over every foot of soil and over every person within the national territory, within the sphere of action assigned to it; and that within that sphere its constitution and laws are the supreme law of the land, and its proper instrumentalities of government can be subjected to no restraint, and can be held to no accountability whatever. Nor, again, do we dispute the proposition that whatever is necessarily implied in the constitution and laws of the United States is as much a part of them as if it were actually expressed. All these questions we pretermit. The recognition by this court, including ourselves, of their soundness, does not in the least elucidate the case; for they lie outside of the true controversy. The ground on which we dissent, and which in and by itself seems to be fatal to the case of the appellee, is this: that, in treating section 753 of the Revised Statutes as an act of authority for this particular use of the writ, a wholly inadmissible construction is placed on the word 'law,' as used in that statute, and a wholly inadmissible application is made of the clause 'in custody in violation of the constitution * * * of the United States.' It will not be necessary to consider these two propositions separately, for they are called into this case as practically one. The section referred to is as follows: 'The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof; or is in custody in violation of the constitution or of a law or treaty of the United States,' etc. It is not contended in behalf of the appellee that the writ of habeas corpus could be used, as here it is, in any case, without authority of a statute. In Ex parte Bollman, 4 Cranch, 75, 94, Chief Justice MARSHALL said: 'The power to award the writ [of habeas corpus] by any of the courts of the United States must be given by written law.' It is not contended that there is any statute other than those now found in the Revised Statutes of the United States. Nor is it contended that in those statutes there is any authority for the use here made of the writ other than what is embraced in the clauses above quoted. The issue, as stated above, is thus narrowed to the proper force to be attributed to those clauses. It is stated as the vital position in appellee's case, that it is not supposed that any special act of congress exists which authorizes the marshals or deputy-marshal of the United States, in express terms, to accompany the judges of the supreme court through their circuits, and act as a bodyguard to them, to defend them against malicious assaults against their persons; that, in the view taken of the constitution of the United States, any obligation fairly and properly inferable from that instrument, or any duty of the marshal to be derived from the general scope of his duties under the laws of the United States, is a 'law,' within the meaning of this phrase; and that it would be a great reproach to the system of government of the United States, declared to be within its sphere sovereign and supreme, if there was to be found within the domain of its powers no means of protecting the judges, in the conscientious and faithful discharge of their duties, from the malice and hatred of those upon whom their judgments might operate unfavorably. In considering this position, it is indispensable to observe carefully the distinction between the individual man, Neagle, and the same person in his official capacity as a deputy-marshal of the United States, and also the individual man whose life he defended, and the same person in his official capacity of a circuit justice of the United States. The practical importance of the distinction between the rights and liabilities of a person in his private character and the authority and immunity of the same person in his official capacity is clearly pointed out and illustrated in U. S. v. Kirby, 7 Wall. 482, 486, in which the court says: 'No officer or employe of the United States is placed by his position, or the services he is called to perform, above responsibility to the legal tribunals of the country, and to the ordinary processes for his arrest and detention, when accused of felony, in the forms prescribed by the constitution and laws.' And the court adds: 'Indeed, it may be doubted whether it is competent for congress to exempt the employes of the United States from arrest on criminal process from the state courts, when the crimes charged against them are not merely mala prohibita, but are mala in se. But, whether legislation of that character be constitutional or not, no intention to extend such exemption should be attributed to congress, unless clearly manifested by its language.' Now, we agree, taking the facts of the case as they are shown by the record, that the personal protection of Mr. Justice FIELD as a private citizen, even to the death of Terry, was not only the right, but was also the duty, of Neagle, and of any other by-stander; and we maintain that for the exercise of that right or duty he is answerable to the courts of the state of California, and to them alone. But we deny that, upon the facts of this record, he, as Deputy-Marshal Neagle, or as Private Citizen Neagle, had any duty imposed on him by the laws of the United States growing out of the official character of Judge FIELD as a circuit justice. We deny that anywhere in this transaction, accepting throughout the appellee's version of the facts, he occupied in law any position other than what would have been occupied by any other person who should have interfered in the same manner, in any other assault of the same character, between any two other persons in that room. In short, we think that there was nothing whatever, in fact, of an official character in the transaction, whatever may have been the appellee's view of his alleged official duties and powers; and, therefore, we think that the courts of the United States have, in the present state of our legislation, no jurisdiction whatever in the premises, and that the appellee should have been remanded to the custody of the sheriff. The contention of the appellee, however, is that it was his official duty, as United States marshal, to protect the justice; and that for so doing, in discharge of this duty, 'which could only arise under the laws of the United States,' his detention by the state courts brings the case within section 753 of the Revised Statutes, as aforesaid. We shall therefore d dress ourselves, as briefly as is consistent with the gravity of the question involved, to a consideration of the justice of that claim. We must, however, call attention again to the formal and deliberate admission that it is not pretended that there is any single, specific statute making it, in so many words, Neagle's duty to protect the justice. The position assumed is, and is wholly, that the authority and duty to protect the justice did arise directly and necessarily out of the constitution and positive congressional enactments. The attorney-general of the United States has appeared in this case for the appellee, in behalf of the government; and, in order that the grounds upon which the government relies in support of its claim against the state of California, that Neagle should be discharged on this writ, may fully appear, it is proper to give some of his most important propositions in his own language. He maintains that 'it was the duty of the judiciary, having been thus protected by the executive department, to sit in judgment upon and to vindicate the officer of the executive department, if innocent, in the discharge of his duty, because such authority in the federal judiciary is essential, in principle, to the existence of the nation.' 'We insist that, by the constitution of the United States, a government was created, possessed of all the powers necessary to existence as an independent nation; that these powers were distributed in three great constitutional departments; and that each of these departments is by that constitution invested with all of those governmental powers naturally belonging to such department which have not been expressly withheld by the terms of the constitution. In other words, that congress is invested not only with expressed, but with implied, legislative powers; that the judiciary is invested not only with express powers granted in the constitution as its share of the government, but with all the judicial powers which have not been expressly withheld from it; and that the president, in like manner, by the very fact that he is made the chief executive of the nation, and is charged to protect, preserve, and defend the constitution, and to take care that the laws are faithfully executed, is invested with necessary and implied executive powers which neither of the other branches of the government can either take away or abridge; that many of these powers, pertaining to each branch of the government, are self-executing, and in no way dependent, except as to the ways and means, upon legislation.' 'The constitution provides that before the president enters upon the execution of his office he shall take an oath: 'I do solemnly swear that I will faithfully execute the office of president of the United States, and will, to the best of my ability, preserve, protect, and defend the constitution of the United States." And he asks: 'Has this clause no significance? Does it not, by necessary implication, invest the president with self-executing powers,—that is, powers independent of statute?' In reply to these propositions, we have this to say: We recognize that the powers of the government, 'within its sphere,' as defined by the constitution and interpreted by the well-settled principles which have resulted from a century of wise and patriotic analysis, are supreme; that these supreme powers extend to the protection of itself and all of its agencies, as well as to the preservation and the perpetuation of its usefulness; and that these powers may be found not only in the express authorities conferred by the constitution, but also in necessary and proper implications. But, while that is all true, it is also true that the powers must be exercised not only by the organs, but also in conformity with the modes, prescribed by the constitution itself. These great federal powers, whose existence in all their plenitude and energy is incontestable, are not autocratic and lawless. They are organized powers committed by the people to the hands of their servants for their own governe nt, and distributed among the legislative, executive, and judicial departments. They are not extra The Constitution: For, in and by that constitution, and in and by it alone, the United States, as a great, democratic, federal republic, was called into existence, and finds its continued existence possible. In that instrument is found not only the answer to the general line of argument pursued in this case, but also to the specific question propounded by the attorney general in respect to the president's oath and its implications. The president is sworn to 'preserve, protect, and defend the constitution.' That oath has great significance. The sections which follow that prescribing the oath (sections 2 and 3 of article 2) prescribe the duties and fix the powers of the president. But one very prominent feature of the constitution which he is sworn to preserve, and which the whole body of the judiciary are bound to enforce, is the closing paragraph of section 8, art. 1, in which it is declared that 'the congress shall have power * * * to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.' This clause is that which contains the germ of all the implication of powers under the constitution. It is that which has built up the congress of the United States into the most august and imposing legislative assembly in the world, and which has secured vigor to the practical operations of the government, and at the same time tended largely to preserve the equilibrinum of its various powers among its co-ordinate departments, as partitioned by that instrument. And that clause alone conclusively refutes the assertion of the attorney general that it was 'the duty of the executive department of the United States to guard and protect at any hazard the life of Mr. Justice FIELD in the discharge of his duty, because such protection is essential to the existence of the government.' Waiving the question of the essentiality of any such protection to the existence of the government, the manifest answer is that the protection needed and to be given must proceed not from the president, but primarily from congress. Again, while it is the president's duty to take care that the laws be faithfully executed, it is not his duty to make laws or a law of the United States. The laws he is to see executed are manifestly those contained in the constitution and those enacted by congress, whose duty it is to make all laws necessary and proper for carrying into execution the powers of those tribunals. In fact, for the president to have undertaken to make any law of the United States pertinent to this matter would have been to invade the domain of power expressly committed by the constitution exclusively to congress. That body was perfectly able to pass such laws as it should deem expedient in reference to such matter. Indeed, it has passed such laws in reference to elections, expressly directing the United States Marshals to attend places of election, to act as peace-officers, to arrest with and without process, and to protect the supervisors of election in the discharge of their duties; and there was not the slightest legal necessity out of which to imply any such power in the president. For these reasons the letters of the attorney general to Marshal Franks, granting that they did import what is claimed, and granting that the attorney general was to all intents and purposes, pro hac vice, the president, invested Neagle with no special powers whatever. They were, if so construed, without authority of law; and Neagle was then and there a simple deputy-marshal,—no more and no less. To illustrate the large sphere of powers self-executing and independent of statutes claimed to be vested in the executive, reference is made to the continually recurring cases of the president's in terference for the protection of our foreign born and naturalized citizes on a visit to their native country; and we are cited, as a striking instance of the exercise of such power, to the case of Martin Kozsta, who, though not fully a naturalized citizen of the United States, had in due form of law made his declaration of intention to become a citizen, and who, while at Smyrna, was seized by order of an Austrian official and confined on board an Austrian vessel, and who, being afterwards delivered up to Capt. Ingraham, commanding an American war vessel, in compliance with a demand backed by a demonstration of force on the part of that officer, was placed in the hands of a French consul subject to negotiations between the American and Austrian governments, resulting in the famous correspondence between the American secretary of state, Mr. Marcy, and the Chevalier Hulseman, representing the Austrian government, and the restoration of Kozsta to freedom. We are asked upon what express statute of congress then existing can this act of the government be justified? We answer, that such action of the government was justified because it pertained to the foreign relations of the United States, in respect to which the federal government is the exclusive representative and embodiment of the entire sovereignty of the nation, in its united character; for to foreign nations, and in our intercourse with them, states and state governments, and even the internal adjustment of federal power, with its complex system of checks and balances, are unknown, and the only authority those nations are permitted to deal with is the authority of the nation as a unit. That authority the constitution vests expressly and conclusively in the treaty-making power, the president and senate, by one simple and comprehensive grant: 'He [the president] shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur.' This broad grant makes enumeration of particular powers unnecessary. All other delegations of powers in reference to the international relations of this country are carefully and specifically enumerated and assigned, one by one, to their designated departments. In reply, therefore, to the question, what law expressly justifies such action? We answer, the organic law, the constitution, which expressly commits all matters pertaining to our diplomatic negotiations to the treaty-making power. Other cases are referred to in illustration of the same point; but the one which it is alleged presents that principle in the most imposing form is that of U. S. v. Tin Co., 125 U. S. 273, 8 Sup. Ct. Rep. 850. In that case a suit was brought in the name of the United States, by order of the attorney general, to set aside a patent which had been issued for a large body of land, on the ground that it had been obtained from the government by fraud and deceit practiced upon its officers. There are, it is true, some expressions in the opinion delivered in that case which seem to admit that there is no specific act of congress expressly authorizing the attorney general to bring suit for the annulment of a patent procured by fraud from the government; but a close examination of the doctrine of the court shows that it goes no further than the assertion that the authority of the attorney general arises, by implication, directly and immediately, out of the express law of congress. The opinion quotes the clause of the constitution which declares that the judicial power shall extend to all cases to which the United States shall be a party, and says that this means, mainly, where it is a party plaintiff. It then refers to the statute of congress which expressly directs the United States district attorneys to bring suits in behalf of the government, and that the suits thus brought by them are to be under the immediate superintendence and control of the attorney general. The utmost extent to which the court goes is that, while admitting there is no express authority in the attorney general to institute the suit, yet such authority is directl and necessarily involved in the express provisions of the statute vesting him with the entire control and superintendence of such suits, and the provision and control of the district attorneys in their conduct of them. Equally conclusive is the answer which the constitution makes to the assertion that by the constitution the judiciary is invested not only with the express powers granted in the constitution as its share of the government, but with all the judicial powers which have not been expressly withheld from it. It may be found in the clause which declares that 'the congress shall have power * * * to constitute tribunals inferior to the supreme court,' and in that which declares it shall make all laws necessary and proper for carrying into execution the powers of those tribunals. The correlation between those clauses is manifest and unmistakable. If congress can and must, by the very terms of the constitution, make all laws proper for carrying into execution all the powers of any department of the government, and if it can create the circuit court, expand its powers, abridge them, and abolish the court, at will, how can it be that that court, at the least, shall have any implied powers derived from the constitution and independent of the statutes? And yet in this transaction it must be remembered that Mr. Justice FIELD is only claimed to be the representative of that court. Not only do the foregoing views seem to us to be the logical and unavoidable results of original and independent studie of the constitution, but they are also sustained and enforced by a long series of judicial recognitions and assertions. In U. S. v. Fisher, 2 Cranch, 358, 396, Chief Justice MARSHALL, in delivering the opinion of the court, said of the clause above relied on: 'In construing this clause, it would be incorrect, and would produce endless difficulties, if the opinion should be maintained that no law was authorized which was not indispensable necessary to give effect to a specified power. Where various systems might be adopted for that purpose, it might be said with respect to each that it was not necessary, because the end might be obtained by other means. Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the constitution.' In McCulloch v. Maryland, 4 Wheat. 316, 420, 421, Chief Justice MARSHALL, for the court, delivered one of those opinions which are among the chief ornaments of American jurisprudence. It is largely devoted to an exhaustive analysis of the constitutional clause in question. Among other things, he says: 'The result of the most careful and attentive consideration bestowed upon this clause is that, if it does not enlarge, it cannot be construed to restrain, the powers of congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the constitution, if that instrument be not a splendid bauble. We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people.' In U. S. v. Reese, 92 U. S. 214, 217, Chief Justice WAITE, delivering the opinion of the court, said: 'Rights and immunities created by or dependent upon the Constitution of the United States can be protected by congress. The form and the manner of the protection may be such as congress, in the legitimate exercise of its legislative discretion, shall provide. These may be varied to meet the necessities of the particular right to be protected.' In Strauder v. West Virginia, 100 U. S. 303, 310, the court say: 'A right or an immunity, whether created by the constitution or only guarantied by it, even without any express delegation of power, may be protected by congress.' Cooley, in his work on Constitutional Limitations, 19, collates from the numerous adjudications of this court cited by him the following principles: 'So far as that instrument [the constitution] apportions powers to the national judiciary, it must be understood, for the most part, as simply authorizing congress to pass the necessary legislation for the exercise of those powers by the federal courts, and not as directly, of its own force, vesting them with that authority. The constitution does not, of its own force, give to national courts jurisdiction of the several cases which it enumerates; but an act of congress is essential, first, to create courts, and afterwards to apportion the jurisdiction among them. The exceptions are of those few cases of which the constitution confers jurisdiction upon the supreme court by name; and, although the courts of the United States administer the common law in many cases, they do not derive authority from the common law to take cognizance of and punish offenses against the government. Offenses against the nation are defined, and their punishment prescribed, by acts of congress.' In a note to this paragraph he says: 'Demurrer to an indictment for libel upon the president and congress. By the court: 'The only question which this case presents is whether the circuit courts can exercise a common-law jurisdiction in criminal cases. * * The general acquiescence of legal men shows the prevalence of opinion in favor of the negative of the proposition. The course of reasoning which leads to this conclusion is simple, obvious, and admits of but little illustration. The powers of the general government are made up of concessions from the several states. Whatever is not expressly given to the former the latter expressly reserve. * * * It is not necessary to inquire whether the general government, in any and to what extent, possesses the power of conferring on its courts a jurisdiction in cases similar to the present. It is enough that such jurisdiction has not been conferred by any legislative act, if it does not result to those courts as a consequence of their creation.' U. S. v. Hudson, 7 Cranch, 32. See U. S. v. Coolidge, 1 Wheat. 415. 'It is clear there can be no common law of the United States. The federal government is composed of twenty-four sovereign and independent states, each of which may have its local usages, customs, and common law. There is no principle which pervades the Union, and has the authority of law, that is not embodied in the constitution or laws of the Union. The common law could be made a part of our federal system only by legislative adoption.' Per MCLEAN, J., Wheaton v. Peters, 8 Pet. 658;' and citing many other authorities. In Tennessee v. Davis, 100 U. S. 257, 267, referring to the judiciary act of 1789, the court said: 'It [the constitution] did not attempt to confer upon the federal courts all the judicial power vested in the government. Additional grants have from time to time been made. Congress has authorized more and more fully, as occasion has required,' etc. It would seem plain, therefore, that if the constitution means anything, and if these judicial utterances, extending, as they do, over a period of 80 years, and embracing a variety of interests, mean anything, they mean that the power to provide and prescribe the laws necessary to effectuate the governmental and official powers of the United States and its officers is vested in congress. The gravamen of this case is in the assertion that Neagle slew Terry in pursuance of a law of the United States. He who claims to have committed a homicide by authority must show the authority. If he claims the authority of law, then what law? And if a law,h ow came it to be a law? Somehow and somewhere it must have had an origin. Is it a law because of the existence of a special and private authority issued from one of the executive departments? So, in almost these words, it is claimed in this case. Is it a law because of some constitutional investiture of sovereignty in the persons of judges, who carry that sovereignty with them wherever they may go? Because of some power inherent in the judiciary to create for others a rule or law of conduct outside of legislation, which shall extend to the death penalty? So, also, in this case, in totidem verbis, it is claimed. We dissent from both these claims. There can be no such law from either of those sources. The right claimed must be traced to legislation of congress, else it cannot exist. If it be said that congress has the power to make such laws, yet, in the absence of statutes from that source, other departments may act in the premises; or if it be said that the possession of that power by the government does not negative the existence of similar powers in other departments of the government,—the response that these powers are plainly not concurrent, but are exclusive, can be made in the language of Mr. Justice STORY, in Prigg v Pennsylvania, 16 Pet. 539, 617. Speaking of the fugitive slave law of 1793, he says: 'If congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner and in a certain form, * * * in such a case the legislation of congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any further legislation to act upon the subject-matter. Its silence as to what it does not do is as expressive of what its intention is as the direct provisions made by it.' If it be said that that case had reference to the interference of a state with congressional powers, while in the case at bar no such question is involved, the answer is that the difference is favorable, and not adverse, to the theory of this opinion. The principle is the same; and, if that principle can be applied, as applied it was, to the denial to a state legislature of the powers previously enjoyed over matters originally appertaining to it, a multo fortiori will it apply to the exclusion of two co-ordinate departments of the same government from powers which they never possessed. As before stated, if the killing of Terry was done 'in pursuance OF A law of the United States,' that law had somewhere an origin. There are, under the general government, only two possible sources of law. The common law never existed in our federal system. The legislative power possessed by the United States must be found either exercised in the constitution as fundamental law, or by some body or person to whom it was delegated by the constitution. It has already been pointed out that the constitution does not itself create any such law as that contended for, and that it could not have been created by any executive or judicial action or status is made manifest, not only by the clause in section 8, art. 1, already cited and commented on, but also by section 1, art. 1, and the two paragraphs of article 6. Section 1, art. 1, provides that 'all legislative power herein granted shall be vested in a congress of the United States, which shall consist of a senate and house of representatives.' The second paragraph of article 6 provides that 'the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.' Now, what is it that constitutes the supreme laws of which so much is said in this case? How distinctly, how plainly, and how fully the constitution answers. The constitution itself, the treaties, and the laws made in pursuance of the constitution. Made by whom? By congress, manifestly. The two clauses already quoted give the power of legislation in the most sweeping terms. It alone has power to make any law. Anything purporting to be a law not enacted by congress would not be 'in pursuance of' any provision of the constitution. Thus we are driven to look for the source of this asserted law to some legislation of congress, legislation made under either its express constitutional authority, or under its properly implied authority, it is immaterial which; and there is none of either class. The authority is sought to be traced here through the self-preservative power of the federal judiciary implied from the constitution, and then through the obligation of the executive to protect the judges, implied from the constitution, whereas there is no such implication in either case, for the simple but all-sufficient reason that by the constitution itself the whole of those functions is committed to congress. Since, then, the constitution did not, by its own direct provisions, regulate this matter, but committed it to the hands of congress, with full powers in the premises, it is only by the enactment of some law of congress that the appellee can show that he is in custody 'in violation of the constitution.' As previously remarked, the two propositions are, as to this case, essentially one. Turning again to the statute under which the writ issued out, we find that the clause relied on is that which makes the writ applicable where the person 'is in custody for an act done or omitted in pursuance of a law of the United States.' The question then arises, what sort of law? What does the expression import? Is it not plain that it means just what the same expression all through the constitution imports? If that instrument, which is the fountain of the federal power, be consulted, it will be found that in it and the amendments thereto the word 'law,' in either its singular form or its plural, 'laws,' is used 42 times. Of these instances of that use, 16 are where the word is used in reference to the jurisprudence of the states and of the law of nations, or where they are merely terms of description, such as 'courts of law,' 'cases in law and equity,' etc. Of the other instances of its use, and which all have reference to that body of rules which constitute the jurisprudence distinctly of the United States, there are only three cases in which it is not manifest that the word is used as equivalent to 'statutes,' 'enactments of the congress;' and it is clear, in those three instances, the word is used, also, as equivalent to 'statutes.' The following are examples: 'The congress may at any time, by law, make or alter such regulations, [in regard to the election of senators and representatives.]' Article 1, § 4. 'Every bill * * * shall, before it become a law, be presented,' etc. Article 1, § 7. 'Congress shall have power * * * to establish * * * uniform laws on the subject of bankruptcies,' etc. Article 1, § 8. 'Congress shall have power * * * to make all laws which shall be necessary and proper,' etc. Article 1, § 8. 'No bill of attainder or ex post facto law shall be passed.' Article 1, § 9. 'Congress shall make no law respecting an establishment of religion.' First Amendment. It would be tedious, and it is unnecessary, to set them all forth. They all have the same manifest meaning of 'statutes,' except three, and in those three instances the words do not mean anything other than statutes. We think it plain that the expression, 'a law of the United States,' as used in section 753 of the Revised Statutes, means just what the similar expression means all through the constitution, and that is 'a statute of the United States.' Tennessee v. Davis, 100 U.S. 264. Of the decisions of this court cited as authority to sustain the order discharging the appellee, Ex parte Siebold, 100 U. S. 371, and Tennessee v. Davis, supra, are relied on as having the most direct bearing on the case. We do not consider Ex parte Siebold as being adverse to the proposition which we maintain. In that case the existence of express statutes upon which the controversy arose was undisputed. The sole question was as to the constitutional competn cy of congress to pass certain laws which, in the most express, explicit, and imperative words, required marshals and deputy-marshals of the United States to attend places for the election of members of congress, to keep the peace at the polls, make arrests, and protect the supervising officers in the discharge of their duties at those elections. The court decided that the enactments of congress in question were constitutional. The power of congress to pass these laws being thus settled, no assertion as to the powers of the marshals and deputy-marshals to execute them in the states can be found in that able opinion which do not follow as a logical consequence. We fail to see anywhere in the decision any intimation that, independently of such legislation, the officers therein named could, by virtue of their office, have exercised the same powers in obedience to the instructions of an executive department, in the exercise of its authority implied from the constitution. In Tennessee v. Davis, the case was removed from a state court to the circuit court of the United States under the express provisions of section 643 of the Revised Statutes. The homicide for which the petitioner was prosecuted was committed by him while executing his duties as a revenue officer, in pursuance of the express requirements of the revenue laws, and in defense of his own life, upon a party offering unlawful resistance. So far from running counter to the position we are seeking to maintain, we think the principle there laid down on the point we are now discussing is in accord with that position. The language of the court, through Mr. Justice STRONG, who delivered its opinion, is as follows: 'Cases arising under the laws of the United States are such as grow out of the legislation of congress, whether they constitute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted. 2 Story, Const. § 1647; [Cohens v. Virginia,] 6 Wheat. 379.' While it is true that the opinions in both of those cases assert in the strongest and most impressive language the supremacy of the government of the United States in the exercise of the powers conferred upon it by the constitution, we regard them, also, as a vindication of congress as the law-making department of the government, as the depository of the implied and constructive powers of the government, or, as Mr. Chief Justice MARSHALL expresses it, of the power 'to legislate on that vast mass of incidental powers which must be involved in the constitution, if that instrument be not a splendid bauble.' As the Siebold Case and Tennessee v. Davis have been referred to as the most important and directly in point in support of the opposite view, we do not deem it necessary to give an extended examination of the series of cases decided by the circuit and district courts cited to the same purport. Ex parte Jenkins, 2 Wall. Jr. 521, to which attention is more especially called, combined in itself the main features of most of the others, which were proceedings under the fugitive slave law, in which United States marshals were arrested while executing process under that law by state officers acting under the authority of the statutes of the state, the inevitable effect, if not the avowed object, of which were to nullify the operation of the aforesaid act of congress. This was so in Ex parte Jenkins. The United States marshal was arrested on a warrant issued by a state magistrate while he was executing a warrant issued under said law of congress. He was brought before the circuit court of the United States for the eastern district of Pennsylvania, on a writ of habeas corpus, and was discharged upon the ground that the fugitive slave law, having been enacted in pursuance of the constitution of the United States, was paramount to the law of Pennsylvania in conflict with it, and that the marshal, being in custody for an act done in pursuance of that law of congress, and in execution of process under it, was entitled to his disca rge. It is so manifest that that case was within the provision of section 753 of the Revised Statutes that further comment is unnecessary, and the same may be said of all of the other decisions of the circuit and district courts. In every one of them the party discharged was in custody either for an act done in pursuance of an express statute of congress, or in the execution of a decree, order, or process of a court, or the custody was in violation of the constitution of the United States. We stated at the outset of these remarks that we raised no question upon the discussion of the history of the legislation of congress upon the subject of the writ of habeas corpus. We think, however, it is pertinent, in this connection, to inquire what was the necessity for any such legislation at all, if the theory contended for as to the sufficiency of the self-executing powers of the executive and judicial departments of the government to protect all the agencies and instrumentalities of the federal government is correct. Why could not President Jackson, in 1833, as the head of the executive department, invested with the power, and charged with the duty, to take care that the laws be faithfully executed, and to defend the constitution, have enforced the collection of the federal revenues in the port of Charleston, and have protected the revenue officers of the government against any arrest made under the pretensions of state authority, without the aid of the act of 1833? Why, in 1842, when the third habeas corpus act was passed, could not the president of the United States, by virtue of the same self-executing powers of the executive, together with those of the judicial department, have enforced the international obligations of the government without any such act of congress? It is a note-worthy fact in our history that whenever the exigencies of the country, from time to time, have required the exercise of executive and judicial power for the enforcement of the supreme authority of the United States government for the protection of its agencies, etc., it was found, in every instance, necessary to invoke the interposition of the power of the national legislature. As early as 1807, in Ex parte Bollman, 4 Cranch, 75, 94, Chief Justice MARSHALL said: 'The power to award the writ [of habeas corpus] by any of the courts of the United States must be given by written law. * * * The inquiry, therefore, on this motion, will be whether, by any statute compatible with the constitution of the United States, the power to award a writ of habeas corpus in such case as that of Erick Bollman and Samuel Swartwout has been given to this court.' It is claimed that such a law is found in section 787 of the Revised Statutes, which is as follows: 'It shall be the duty of the marshal of each district to attend the district and circuit courts when sitting therein, and to execute throughout the district all lawful precepts directed to him, and issued under the authority of the United States; and be shall have power to command all necessary assistance in the execution to keep the peace of the United the duty imposed upon the marshal of each district by this section is not satisfied by a mere formal attendance upon the judges while on the bench; but that it extends to the whole term of the courts while in session, and can fairly be construed as requiring him to attend the judge while on his way from one court to another, to perform his duty. It is manifest that the statute will bear no such construction. In the first place, the judge is not the court. The person does not embody the tribunal, nor does the tribunal follow him in his journeys. In the second place, the direction that he shall attend the court confers no authority or power on him of any character. It is merely a requirement that he shall be present, in person, at the court when sitting, in order to receive the lawful commands of the tribunal, and to discharge the duties elsewhere imposed upon him. Great as the crime of Terry was in his assaul upon Mr. Justice FIELD, so far from its being a crime against the court, it was not even a contempt of court, and could not have received adequate punishment as such. Section 725 of the Revised Statutes limits contempt to cases of misbehavior in the presence of the court, or so near thereto as to obstruct the administration of justice. It is claimed that the law needed for appellee's case can be found in section 788 of the Revised Statutes. That section is as follows: 'The marshals and their deputies shall have in each state the same powers in executing the laws of the United States as the sheriffs and their deputies in such state may have, by law, in executing the laws thereof.' It is then argued that by the Code of California the sheriff has extensive powers as a conservator of the peace, the statutes to that effect being quoted in extenso; that he also has certain additional common-law powers and obligations to protect the judges, and to personally attend them on their visits to that state; that, therefore, no statutory authority of the United States for the attendance on Mr. Justice FIELD by Neagle, and for Neagle's personal presence on the scene, was necessary; and that that statute constituted Neagle a peace-officer to keep the peace of the United States. This line of argument seems to us wholly untenable. By way of preliminary remark, it may be well to say that, so far as the simple fact of Neagle's attendance on Mr. Justice FIELD, and the fact of his personal presence, are concerned, no authority, statutory or otherwise, was needed. He had a right to be there; and, being there, no matter how or why, if it became necessary to discharge an official duty, he would be just as much entitled to the protection of section 753 of the Revised Statutes as if he had been discharging an official duty in going there. The fallacy in the use made of section 788 in the argument just outlined is this: That section gives to the officers named the same measure of powers when in the discharge of their duties as those possessed by the sheriffs, it is true; but it does not alter the duties themselves. It does not empower them to enlarge the scope of their labors and responsibilities, but only adds to their efficiency within that scope. They are still, by the very terms of the statute itself, limited to the execution of 'the laws of the United States,' and are not in any way, by adoption, mediate or immediate, from the Code or the common law, authorized to execute the laws of California. The statute, therefore, leaves the matter just where it found it. If the act of Terry had resulted in the death of Mr. Justice FIELD, would the murder of him have been a crime against the United States? Would the government of the United States, with all the supreme powers of which we have heard so much in this discussion, have been competent, in the present condition of its statutes, to prosecute in its own tribunals the murder of its own supreme court justice, or even to inquire into the heinous offense through its own tribunals? If yes, then the slaying of Terry by the appellee, in the necessary prevention of such act, was authorized by the law of the United States, and he should be discharged, and that independently of any official character; the situation being the same in the case of any citizen. But if no, how stands the matter then? The killing of Terry was not by authority of the United States, no matter by whom done, and the only authority relied on for vindication must be that of the state, and the slayer should be remanded to the state courts to be tried. The question then recurs, would it have been a crime against the United States? There can be but one answer. Murder is not an offense against the United States except when committed on the high seas or in some port or harbor without the jurisdiction of the state, or in the District of Columbia, or in the territories, or at other places where the National Government has exclusive Jurisdiction. It is well settled that such crime must be defined by stt ute, and no such statute has yet been pointed out. The United States government being thus powerless to try and punish a man charged with murder, we are not prepared to affirm that it is omnipotent to discharge from trial, and give immunity from any liability to trial, where he is accused of murder, unless an express statute of congress is produced permitting such discharge. We are not unmindful of the fact that in the foregoing remarks we have not discussed the bearings of this decision upon the autonomy of the states, in divesting them of what was once regarded as their exclusive jurisdiction over crimes committed within their own territory, against their own laws, and in enabling a federal judge or court, by an order in a habeas corpus proceeding, to deprive a state of its power to maintain its own public order, or to protect the security of society and the lives of its own citizens, whenever the amenability to its courts of a federal officer or employe or agent is sought to be enforced. We have not entered upon that question because, as arising here, its suggestion is sufficient, and its consideration might involve the extent to which legislation in that direction may constitutionally go, which could only be properly determined when directly presented by the record in a case before the court for adjudication. For these reasons, as briefly stated as possible, we think the judgment of the court below should be reversed, and the prisoner remanded to the custody of the sheriff of San Joaquin county, Cal.; and we are the less reluctant to express this conclusion because we cannot permit ourselves to doubt that the authorities of the state of California are competent and willing to do justice, and that, even if the appellee had been indicted and had gone to trial upon this record, God and his country would have given him a good deliverance. FULLER, C. J., concurred.
130.US.83	A statute of Utah provided that every person guilty of murder in the first degree shall suffer death, or, upon the recommendation of the jury, may be imprisoned at hard labor in the penitentiary for life, at the discretion of the court; Held, (1) That the authority given to substitute imprisonment at hard labor in the penitentiary for life for the punishment by death, when the accused is found guilty of murder in the first degree, depends upon a previous recommendation to that effect by the jury; (2) That when a person is on trial charged with the commission of murder in the first degree, it is the duty of the court to Inform the jury of their right, under the statute, to recommend imprisonment for life at hard labor in the place of the punishment of death; and that failure to do so is error.	The Penal Code of Utah, established by the act of February 18, 1876, provides that 'every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery; or perpetrated from a premeditated design, unlawfully and maliciously to effect the death of any other human being other than him who is killed; or perpetrated by any act greatly dangerous to the lives of others, and evidencing a depraved mind, regardless of human life,—is murder in the first degree; and any other homicide, committed under such circumstances as would have constituted murder at common law, is murder in the second degree.' Comp. Laws Utah 1876, p. 585. The same Code further provides that 'every person guilty of murder in the first degree shall suffer death, or, upon the recommendation of the jury, may be imprisoned at hard labor in the penitentiary for life, at the discretion of the court, and every person guilty of murder in the second degree shall be imprisoned at hard labor and the penitentiary for not less than five nor more than fifteen years.' Comp. Laws Utah 1876, p. 586. It is clear that the authority given in the section last quoted, to substitute imprisonment at hard labor in the penitentiary for life for the penalty of death, when the accused is found guilty of murder in the first degree, depends upon a previous recommendation to that effect by the jury. Without such recommendation, the court, in the absence of sufficient grounds for a new trial, has no alternative but to sentence the accused to suffer death. While in this case the jury were instructed as to what constituted murder in the first and second degrees, they were not informed as to their right, under the statute, to recommend imprisonment for life at hard labor in the penitentiary in place of the punishment of death. If their attention had been called to that statute, it may be that they would have made such a recommendation, and thereby enabled the court to reduce the punishment to imprisonment for life. We are of opinion that the court erred in not directing the attention of the jury to this matter. The statute evidently proceeds upon the ground that there may be cases of murder in the first degree, the punishment for which by imprisonment for life at hard labor will suffice to meet the ends of public justice. Its object could only have been met through a recommendation by the jury that the lesser punishment be inflicted, and it is not to be presumed that they were aware of their right to make such recommendation. The failure of the court to instruct them upon this point prevented it from imposing the punishment of imprisonment for life, even if, in its judgment, the circumstances of the case rendered such a course proper. It was well said in the dissenting opinion of Mr. Justice HENDERSON, in the supreme court of the territory, that by the action of the district court 'the prisoner was deprived of a substantial right. The determination of the question as to whether he should suffer death or imprisonment was one of vital consequence to him. The jury, to whom the statute commits the determination of that question, at least in part, were not informed of their duty and responsibility in the matter, so as to require them to exercise their judgment and discretion in relation to it, and, by the verdict they rendered, the court had none.' These views are in accordance with the fundamental rules obtaining in the trial of criminal cases involving life. Other questions were discussed at the bar, but as the instructions relating to them are somewhat obscure, and as they may not arise upon another trial in the form in which they are now presented, we forbear a determination of them. For the error indicated the judgment is reversed, with directions for a new trial, and for such further proceedings as may not be inconsistent with this opinion.
129.US.506	A state court has jurisdiction of an action brought by an assignee in bankruptcy to set aside, as made to defraud creditors, conveyances made by the bankrupt before the bankruptcy When an assignee in bankruptcy resorts to a state court to set aside a conveyance by the bankrupt as made to defraud creditors, and no question is raised there as to his power under the acts of Congress, or as to the rights vested in him as assignee, the judgment of the state court is subject to review here in the same manner and to the same extent as proceedings of a similar character by a creditor to set aside conveyances in fraud of his rights by a debtor. Tlfe decision of the state court in this case, as to what should be deemed a fraudulent conveyance and as to the application of the evidence in reaching that decision, presents no Federal question.	Section 709 of the Revised Statutes points out the cases in which the judgment or decree of the highest court of a state, in which a decision could be had, may be reviewed by the supreme court of the United States. It provides for such review in three classes of cases: First, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against its validity; second, where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of its being repugnant to the consititution, treaties, or laws of the United States, and the decision is in favor of its validity; third, where any title, right, privilege, or immunity is claimed under the constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such constitution, treaty, statute, commission, or authority. In neither of the clauses mentioned is there any provision which covers the present case. It is true, by section 4972 of the Revised Statutes, the jurisdiction of the district courts of the United States, as courts of bankruptcy, extends to all cases and controversies arising between the bankrupt and any creditor or creditors who may claim any debt or demand under the bankruptcy, and to the collection of the assets of the bankrupt, and, indeed, to all acts, matters, or things to be done under and in virtue of the bankruptcy, until the final distribution and settlement of his estate, and the close of the proceedings in bankruptcy. Under these provisions the assignee might undoubtedly have brought suit to set aside the conveyances in question in the district court of the United States for the district. Had he done so, this court would have had jurisdiction to review its decree; but he was not precluded from proceeding in the state court to set aside the alleged fraudulent conveyances. And when he resorted to that court, and no question was raised as to his power under the acts of congress, or the rights vested in him as assignee, the proceedings were governed, and the judgment of the court upon the validity of the conveyances was subject to review, in the same manner, and to the same extent, as proceedings of a similar character by a creditor to set aside conveyances in fraud of his rights by a debtor. Glenny v. Langdon, 98 U. S. 20, and Trimble v. Woodhead, 102 U. S. 647, were cases commenced in the circuit court of the United States; and Barton v. Geiler, 108 U. S. 161, 2 Sup. Ct. Rep. 387, was commenced in a state court. See, also, Clark v. Ewing, 9 Biss. 440, 3 Fed. Rep. 83; Olcott v. Maclean, 73 N. Y. 223; and Goodrich v. Wilson, 119 Mass. 429. In the proceedings in the state court no decision was made against the validity of any statute of, or authority exercised under, the United States, or against any title, right, privilege, or immunity claimed under the constitution of the United States, or any statute thereof. No question, indeed, arose under the action of the state court which could bring its decision within the provisions of section 709 of the Revised Statutes. The several cases to which our attention is called, as being in supposed conflict with this view, have no bearing upon the questions involved. In O'Brien v. Weld, 92 U. S. 81, the question arose whether under the bankrupt act the district court of the United States had authority to make the order involved, and the decision of the highest state court was against the authority, and that was held sufficient to sustain the federal jurisdiction. In Insurance Co. v. Murphy, 111 U. S. 738, 4 Sup. Ct. Rep. 679, the effect to be given to a sale of property under an order of the district court in bankruptcy was in question, the authority of the court to direct a sale free from incumbrances being denied. Jenkins v. Bank, 127 U. S. 484, 8 Sup. Ct. rep. 1196, involved a question as to the authority of the assignee in bankruptcy to institute a suit touching any property, or rights of property, vested in him after the expiration of two years from the time when the cause of action accrued. The decision of the state court as to what should be deemed a fraudulent conveyance does not present any federal question, nor does the application by the court of the evidence in reaching that decision raise one. We are of opinion, therefore, that this court has no jurisdiction to review the judgment of the supreme court of Tennessee. The writ of error must consequently be dismissed, and it is so ordered.
130.US.472	On the facts of this case, it was held that the defendant was not a co-partner with another person, in his general business, and liable for his debts.	We are of opinion that, upon the same grounds, the decree must be affirmed. In addition, it may be said that the evidence sustains the matters set up in the answer; that it is not shown that the defendant ever represented himself to be a member of the firm of Squier & Co., nor does it appear that any creditor of that firm was ever informed or supposed that the defendant was such member, or gave credit to the firm, or had dealings with the firm, on the understanding or belief that he was a partner. The dealings between the parties appear always to have been of the character mentioned in the written paper of August 1, 1883. In every case of an advance or loan of money by the defendant to Squier & Co., a note was given to the defendant for the amount, bearing 10 per cent. interest, and pay vouchers for the same amount were placed in the hands of the defendant. The money lent by the defendant to Squier & Co., for which the notes were given, was to be invested in vouchers, which were to be bought at a rate to net in the way of discount the profit designated in the agreement; but that profit was not intended to be a profit to the defendant, in addition to the 10 per cent. interest, for it was expressly provided that all moneys which might be collected by the defendant on the vouchers, or received by him, should be credited to Squier & Co. on the notes. This compelled a credit to Squier & Co. on the principal of the notes of all the monthly sums paid by Squier & Co. to the defendant, and called 'profits,' over and above the amount necessary to pay to him 10 per cent. interest on the aggregate amount of his loans; and the practical construction of the agreement by the parties was to the same effect, because the testimony of Edmonds shows that he had various settlements from time to time with Squier, in which prior notes that he had received from Squier for loans were surrendered to Squier, on the ground that they had been extinguished by the surplus of the monthly payments by Squier over and above the amount necessary to pay to the defendant interest at 10 per cent. on the moneys which he had lent to Squier. It was lawful to stipulate in writing for interest at 10 per cent. Rev. St. D. C. § 714. Decree affirmed.
132.US.478	Property of a debtor, brought within the custody of the Circuit Court of the United States by seizure under process issued upon its judgment, remains in its custody to be applied in satisfaction of its judgment, notwithstanding the subsequent death of the debtor before the sale under execution. The jurisdiction of a court of the United States, once obtained over property by its being brought within its custody, continues until the purpose of the seizure is accomplished, and cannot be impaired or affected by any legislation of the State, or by any proceedings subsequently commenced in a state court. Probate laws of a State which, upon the death of a party to a suit in a Federal Court, withdraw his estate from the operation of the execution laws of the State, and place it in the hands of his executor or administrator for the benefit of his creditors and distributees, do not apply when, previous to the death of the debtor, his property has been seized upon execution, and thus specifically appropriated to the satisfaction of a judgment in that court.	The question presented for our consideration is whether property of a debtor, brought within the custody of the circuit court of the United States by seizure under process issued upon its judgment, remains in its custody to be applied in satisfaction of the judgment notwithstanding the subsequent death of the debtor, or is removed by such death from the jurisdiction of the circuit court, and passes under the control of the probate court of the state, to be disposed of in the administration of the assets of the deceased. To this question we have no doubt the answer must be that the property remains in the custody of the circuit court of the United States, to be applied to the satisfaction of the judgment under which it was seized. The jurisdiction of a court of the United States, once obtained over property by being brought within its custody, continues until the purpose of the seizure is accomplished, and cannot be impaired or affected by any legislation of the state, or by any proceedings subsequently commenced in a state court. This exemption of the authority of the courts of the United States from interference by legislative or judicial action of the states is essential to their independence and efficiency. If their jurisdiction could in any particular be invaded and impaired by such state action, it would be difficult to perceive any limit to which the invasion and impairment might not be extended. To sanction the doctrine for which the executor appointed by the probate court of the parish of Orleans contends, would be to subordinate the authority of the federal courts in essential attributes to the regulation of the state,—a position which is wholly inadmissible. The principle declared in Freeman v. Howe, 24 How. 450, and in Buck v. Colbath, 3 Wall. 334, both of which have, from their importance, attracted special attention from the profession, in effect determines the question presented here. In the first of these cases the marshal had levied a writ of attachment, issued from the circuit court of the United States for the district of Massachusetts, upon certain property which was subsequently taken from his possession by the sheriff of the county of Middlesex, in that state, under a writ of replevin issued from a state court, and the question presented was whether the sheriff was justified in thus taking the property from the marshal's possession, or whether the marshal had the right to retain it. The court held that the property was, by its attachment under process of the federal court, brought within the custody of that court and under its jurisdiction; that it could not be taken from that custody by any tribunal of the state; and that, if a conflict in the assertion of jurisdiction in such case arose, the determination of the question rested with the federal court; observing that 'no government could maintain the administration or execution of its laws, civil or criminal, if the jurisdiction of its judicial tribunals were subject to the determination of another.' In the second of the above cases (Buck v. Colbath, 3 Wall. 334) this court referred to the decision in Freeman v. Howe, and, after stating that, when first announced, it had taken the profession generally by surprise, said that the court was clearly satisfied with the principle upon which the decision was founded,—'a principle,' it added, 'which is essential to the dignity and just authority of every court, and to the comity which should regulate the relations between all courts of concurrent jurisdiction. That principle is that, whenever property has been seized by an officer of the court by virtue of its process, the property is to be considered as in the custody of the court and under its control for the time being; and that no other court has a right to interfere with that possession, unless it be some court which may have a direct supervisory control over the court whose process has first taken possession, or some superior jurisdiction in the premises.' The doctrine of Freeman v. Howe was thus reaffirmed, with a statement of the limitation to which, in its application, it was subject, by allowing suits against officers and others for seizing the property of strangers, which did not invade the custody of the court over the property. With the property in custody, so long as it continues, no other tribunal can interfere, though, but for such custody, possession of it might be taken under process from state courts. Covell v. Heyman, 111 U. S. 176, 4 Sup. Ct. Rep. 355. In Riggs v. Johnson Co., 6 Wall. 166, which came from the circuit court for the district of Iowa, and was before us at December term, 1867, this doctrine finds illustration. There the plaintiff had obtained judgment in the circuit court against the county upon certain of its bonds. Execution, issued upon the judgment, was returned unsatisfied. Thereupon he applied to the circuit court for a mandamus upon the supervisors of the county to compel the levy of a tax for the payment of the judgment. An alternative writ was issued commanding the supervisors to assess the tax, or show cause to the contrary, on a day designated. The supervisors appeared on the return-day, and alleged that they had been enjoined by proceedings in a state court from assessing a tax for that purpose, and that they could not do so without being guilty of contempt and becoming liable to punishment. To this return the plaintiff demurred on several grounds, and among others, that the state court had no jurisdiction, power, or authority to prevent him from using the process of the circuit court to collect its judgment, and that the decree for an injunction rendered in the state court was no bar to his application for relief. The court overruled the demurrer, and decided that the return was sufficient. Judgment was thereupon rendered for the supervisors, and the plaintiff brought the case to this court by writ of error. Here the judgment was reversed, and the cause remanded, with directions to sustain the demurrer, and take further proceedings in accordance with the opinion of the court. In considering the grounds of the demurrer, this court held that the jurisdiction of a court is not exhausted by the rendition of judgment, but continues until that judgment is satisfied; that process subsequent to judgment is as essential to jurisdiction as process antecedent to judgment, observing that the judicial power would otherwise be incomplete and entirely inadequate to the purposes for which it is conferred by the constitution; that mandamus is an appropriate remedy to compel the levy of a tax to pay a debt contracted by a municipal corporation, where judgment has been recovered for the debt, and execution thereon has been returned unsatisfied; and that state laws cannot control its process. 'Repeated decisions of this court,' was its language, 'have also determined that state laws, whether general or enacted for the particular case, cannot in any manner limit or affect the operation of the process or proceedings in the federal courts.' And it concluded its consideration of the subject by holding that the injunction of the state court was 'inoperative to control, or in any manner to affect, the process or proceedings of a circuit court, not on account of any paramount jurisdiction in the latter courts, but because, in their sphere of action, circuit courts are wholly independent of the state tribunals.' It is earnesly contended that this doctrine cannot apply where the property brought under the control of the federal court has by the subsequent death of the debtor become, under the statute of Louisiana, the subject of administration in the probate courts of the state. The doctrine, as declared in the cases cited, does not admit of any exception to the jurisdiction of the circuit court of the United States in such cases Indeed, if an exception could be made in cases in the probate court, it might be made in other cases. Special jurisdiction in particular classes of cases might be authorized, so as to take a large portion of subjects from the jurisdiction of the federal courts. When property is seized to satisfy a money judgment of the United States court, and thus brought within its custody, it is appropriated to pay that judgment, and the court cannot surrender its jurisdiction over the property until it is applied to that judgment, or that judgment is otherwise satisfied. Only the part remaining after such appropriation goes, upon the death of the debtor, into the probate court as his assets. All proceedings under a levy of execution have relation back to the time of the seizure of the property. Freeman v. Dawson, 110 U. S. 264, 270, 4 Sup. Ct. Rep. 94. We do not question the general doctrine laid down in Yonley v. Lavender, 21 Wall. 276, 279, 280, to the effect that the administration laws of a state are not merely rules of practice for the courts, but laws limiting the rights of the parties, and will be observed by the federal courts in the enforcement of individual rights, and that those laws, upon the d ath of a party, withdraw the estate of the deceased from the operation of the execution laws of the state, and place them in the hands of his executor or administrator for the benefit of his creditors and distributees. But that doctrine only applies where the property has not been, previous to the death of the debtor, taken into custody by the federal court upon its process, and thus specifically appropriated to the satisfaction of such judgment. In this case, had Gomila died before the property in question had been seized upon process issued upon a judgment against him, the doctrine of the case cited might have been applicable. We do not recall any case now where the federal courts have not paid respect to the principle that all debts to be paid out of the decedent's estate are to be established in the court to which the law of his domicile has confided the general administration of estates, and that judgments against the deceased, unaccompanied by a seizure of property for their satisfaction, stand in the same position as other claims against his estate, and are to be paid in like manner. The jurisdiction of chancery to enforce the equitable rights of a non-resident creditor in the case of maladministration or non-administration of the estate of a decedent stands upon a different principle, (Payne v. Hook, 7 Wall. 425;) the rule prevailing, as stated in Hyde v. Stone, 20 How. 170, 175, that the jurisdiction of the courts of the United States over controversies between citizens of different states cannot be impaired by the laws of the state which prescribe the modes of redress in their courts or which regulate the distribution of their judicial power. Nor is there anything in the doctrine of the exclusive jurisdiction of the federal court to dispose of the property in its custody without any intervention of the probate court, until its judgment is satisfied, that in any way trenches upon that doctrine, equally well established, that where a state and a federal court have concurrent jurisdiction over the same subject-matter, that court which first obtains jurisdiction will retain it to the end of the controversy, either to the exclusion of the other, or to its exclusion so far as to render the latter's decision subordinate to the other,—a doctrine which, with some exceptions, is recognized both in federal and state courts. Wallace v. McConnell, 13 Pet. 136, 143; Taylor v. Taintor, 16 Wall. 366, 370. Wallace v. McConnell, 13 Pet. 136, 143, was a case brought in the district court of the United States for the district of Alabama, exercising the power of a circuit court, upon the promissory note of the defendant for $4,880. The defendant appeared, and pleaded payment and satisfaction, and, issue being joined, the case was continued until the succeeding term. The defendant then interposed a plea of puis darrien continuance alleging that, as to $4,204 of the sum, the plaintiff ought not to maintain his action, because that sum had been attached in proceedings commenced against him under the attachment law of the state in which he was summoned as garnishee. In those proceedings he had admitted his indebtedness beyond a certain payment made, and the state court gave judgment against him for the balance. To this plea the plaintiff demurred, and the demurrer was sustained. The case being taken to this court, it was contended that the proceedings under the attachment law of Alabama were sufficient to bar the action as to the amount attached, and that, therefore, the demurrer ought to have been overruled. But the court said: 'The plea shows that the proceedings on the attachment were instituted after the commencement of this suit. The jurisdiction of the district court of the United States, and the right of the plaintiff to prosecute his suit in that court, having attached, that right could not be arrested or taken away by any proceedings in another court. This would produce a collision in the jurisdiction of courts that would extremely embarrass the admi istration of justice.' From the views expressed it follows that the court below erred in ordering the marshal to discontinue the advertisement for the sale of the property seized, and from proceeding with its sale, and directing its delivery over to the executor of the deceased, Gomila, for purposes of administration under the orders of the probate court of the parish of Orleans. Only so much of the property, or of its proceeds, as may remain after the satisfaction of the judgment under which the property was seized, can be transferred to such executor. The judgment of the court below must therefore be reversed, and the cause remanded, with directions to discharge the rule.
131.US.66	The connection of the plaintiff in error with the partnership of Griffith & Wundram was not a matter in issue in the proceedings in bankruptcy against that firm. An adjudication of the bankruptcy of a firm, and of the members in whose name the firm was doing business, in a bankrupt proceeding affecting them alone, to which a special partner was not a party, does not estop a copartnership creditor from setting up the liability of such special partner, imposed upon him by the statute, for non-compliance with its provisions. A special partner in a partnership, who is not a party to proceedings in bankruptcy against the partnership and the general members of it, is not entitled to the stay of proceedings provided for in Rev. Stat. § 5118, until the question of the debtor's discharge shall have been determined. A discharge of two generhl partners in bankruptcy cannot be set up in favor of a special partner in an action against the tbree as general partners on the ground that the special partner has. made himself liable as a general partner.	This writ of error brings before the court for review a judgment of the court of common pleas for the city and county of New York, affirming, on appeal, a judgment of the city court of New York. The former is, under the New York Code of Civil Procedure, the highest court of the state to which a decision of the latter court may, as a matter of right, be carried by appeal for reversal or affirmance. The federal question involved relates to the construction of the bankrupt act of March 2, 1867. On the 18th of June, 1877, the defendants in error filed in the marine court of the city of New York, now known as the 'City Court of New York,' a complaint against William P Abendroth, John Griffith, and George W Wundram, in which they alleged 'that at the times hereinafter mentioned the defendants were copartners in business, carrying on such business in the city of New York under the firm name and style of Griffith & Wundram; that on or about the 7th day of August, 1872, at the city of New York, the said defendants, in and under their said firm name of Griffith & Wundram, made their certain promissory note in writing, bearing date on that day, whereby they promised, three months after the date thereof, to pay to the order of Van Dolsen & Arnott, these plaintiffs, the sum of $900.32, and thereupon delivered said note to these plaintiffs; that plaintiffs are the holders and owners of said note, and the said note is wholly unpaid; wherefore plaintiffs demand judgment against the defendants for the sum of $900.32, with interest from the 10th day of November, 1872, and for the costs of this action.' The defendant Abendroth alone appeared, and filed his answer, which, after denying the partnership as alleged in the complaint, set up as a further defense that it was a limited partnership, under the name of Griffith & Wundram, of which Griffith & Wundram were the general partners, and he a special partner only, and as such special partner entitled, under the statutes of New York, to exemption from liability for engagements of the firm as a general partner. For a third defense he pleaded, in bar and abatement, that prior to the commencement of the suit certain bankruptcy proceedings had been instituted in the district court of the United States for the Southern district of New York, in bankruptcy, wherein an adjudication of bankruptcy of the said firm of Griffith & Wundram was duly rendered by said court, and wherein it was also declared and adjudged that said John Griffith and George W. Wundram, the bankrupts in said bankruptcy, were the general partners, and the defendant Abendroth was the special partner thereof. The case was tried before a jury, which, under the direction of the court, found in favor of the plaintiffs for the amount claimed, with interest, and judgment was entered accordingly. Upon appeal the judgment was affirmed. To reverse that affirmance this writ of error was sued out. From the evidence in this case it appears that on the 23d of December, 1870, Abendroth, Griffith, and Wundram formed a limited partnership under the statutes of New York, under the firm name of Griffith & Wundram, in which Griffith and Wundram were designated the general partners and Abendroth the special partner. All the requirements of the statute, as to the signing and publication of the articles, filing of the certificate and affidavit, and publishing the same, were strictly complied with, except that the capital contributed by the special partner was not paid in cash, as stated in the affidavit, but by a post-dated check, payable eight days after its execution, and cashed in ten days from its date, the day after the firm went into business. Such misstatement in the affidavit was held by the court of appeals of that state to render the special partner liable as a general partner for the engagements of the firm, under the following provision of the statute authorizing the formation of limited partnerships: 'And if any false statement be made in such certificate or affidavit all the persons interested in such partnership shall be liable for all the engagements thereof as general partners.' On the 30th of November, 1872, Wundram presented his petition in bankruptcy to the district court of the United States for the Southern district of New York, setting forth that he was a member of the copartnership consisting of himself and John Griffith, carrying on business under the firm name of Griffith & Wundram within that judicial district; that the members of said copartnership were, jointly and severally, unable to pay their debts; and with the other averments usual in such petitions. The usual schedules were annexed to the petition. No mention was made of Abendroth in the petition, but in the schedule he was stated to be one of the creditors of the firm, as were also the defendants in error here, Van Dolsen & Arnott. Upon this petition an order was issued requiring Griffith to show cause, etc. It contained no reference to Abendroth, and was not directed to him, nor served upon him. After due proof of service on Griffith, the adjudication in bankruptcy was made in these words: 'It is adjudged that John Griffith and George W. Wundram and the copartnership of Griffith & Wundram became bankrupt * * * before the filing of the petition, and they are therefore declared and adjudged bankrupts accordingly.' It is proper to note here that in this adjudication there is no reference to Abendroth as a partner, either general or special; and no designation of the firm as a limited partnership. The usual warrant of seizure of the estate of the bankrupt, the assignment of assets to the register in bankruptcy, the notice to creditors, and the first meeting of the creditors, all followed in the regular order of such proceedings. Abendroth was chosen by the creditors as assignee in bankruptcy, and accepted the office with the approval of the judge. Upon the face of the return it appears that Van Dolsen & Arnott did not take any part in the selection of the assignee. At the second meeting of the creditors, Joseph McDonald & Co., creditors of the bankrupts, presented a petition to the register in bankruptcy, setting forth that two days before the filing of the petition in bankruptcy certain of the creditors had agreed to sell their claims to Abendroth at 25 cents on the dollar, had afterwards proved their debts in bankruptcy, and had then assigned the same to Abendroth. They asked that Abendroth should not receive any dividend upon said assigned claims, and that the proof of them should be expunged, and the claims disallowed. An order was made for a hearing on the petition before the register, five days' notice being first given to the creditors whose claims were thus opposed. Van Dolsen & Arnott were not among such creditors, and it is not contended that they received the notice above mentioned. The register, having heard the case, made his report to the bankruptcy court, in which he presented the questions that came before him, among others whether the debts assigned to Abendroth should be disallowed, because he was a special partner in the bankruptcy firm; the petitioners relying upon a provision of the statutes of New York, in relation to limited partnerships, that no special partner, except in particular cases, therein specified, could be allowed to claim as creditor, in case of the bankruptcy of the partnership, until the claims of all the other creditors of the partnership should be satisfied. The register reported his opinion to be that, in respect to these assigned claims, Abendroth stood in the shoes of his assignors, and was a creditor as their representative, and in no other character. Upon this report of the register the judge of the district court adjudged that Abendroth was entitled to receive a dividend on the assigned claims, and that they ought not to be expunged or diminished. It appears that Abendroth and McDonald & Co. had both proved debts, but that Van Dolsen & Arnott were not among the creditors making such proofs. The counsel for plaintiff in error does not contend that this court should disregard the construction which the courts of New York have given to the statutes of that state authorizing the formation of limited partnerships; nor does he deny that Abendroth incurred, at the formation of the partnership, a statutory liability for the debts of the firm, by the misstatement in the affidavit respecting the time and manner of putting in his capital as a special partner; but he contends that the plaintiffs are estopped from setting up this liability by the proceedings in bankruptcy, above recited, which he claims had the effect of an adjudication binding upon them that no such liability existed. This contention involves two propositions: First, that as Wundram's petition against Griffith alleged that the two, Griffith and Wundram, composed the firm, it clearly meant that they were all of the copartners, and that accordingly the adjudication must be held to have been an adjudication of the fact that Abendroth was not a member of the firm. We have seen that through the entire proceedings in bankruptcy, from the inception to the adjudication, inclusive, nothing appears affirmatively or negatively with regard to Abendroth's membership of the firm, no reference to him of any kind in the adjudication, and nothing in regard to him except as a creditor in the schedule annexed to the petition. We concur in the opinion of the court below that the connection of Abendroth with the partnership was not a matter in issue, nor a point in controversy upon the determination of which the adjudication was rendered. An adjudication in bankruptcy partakes in part of the nature of a judgment n rem, and in part of the nature of a judgment in personam. With regard to the estate of the bankrupt debtor, which has been by the court's warrant of seizure, or by the surrender of the debtor, brought within the possession and jurisdiction of the court, its orders, decrees, and judgments as to the right and title to the property, or as to the disposition of it among the parties interested, are binding upon all persons, and in every court. As a determination of the legal status of the bankrupt, or of the relations of the creditors to both, its judgment is conclusive in all courts where it is pleaded. But as a determination of the legal status of a person not a bankrupt, and who was not a party to the proceeding, and whose status as a bankrupt has never been a question before the court, it unquestionably is not binding upon any person not a party to such proceeding. In the cases cited by the counsel for plaintiff in error the adjudication either determined the legal status of the bankrupt debtor, or related to the bankrupt estate brought within the jurisdiction of the court. In this case the petition neither asserted nor denied that Abendroth was a member of the bankrupt firm. No process was served upon him to show whether he was or was not such member; nor did he himself voluntarily appear and petition to be declared the one or the other. In our opinion an adjudication of the bankruptcy of a firm, and of the members in whose name the firm was doing business, in a bankrupt proceeding affecting them alone, to which a special partner was not a party, does not estop a copartnership creditor from setting up the liability of such special partner imposed upon him by the statute for noncompliance with its provisions. The second ground involved in the contention of the plaintiff in error is that there was, in the subsequent proceedings before the register, an express adjudication that Abendroth was a special partner, and not a general partner, and that this adjudication was binding upon all the creditors, including the plaintiffs below in this action. We think this contention untenable. The question before the register in that proceeding was whether the proof of the claims referred to should be expunged, and the dividends upon them disallowed to Abendroth. In his report to the court he expresses his opinion to be that neither the fact that Abendroth was the assignee in bankruptcy, nor the fact that he was a special partner in the firm, precluded him from drawing his share of dividends in the claims referred to. This was certainly not an adjudication by the court that he was a special partner. The district judge, in the order made by him, did not pass on any question discussed in the report of the register, except his conclusion that the claims assigned to Abendroth, as aforesaid, ought not to be expunged or diminished, and that he was entitled to the dividends on them; and he so ordered. The order, relating as it did exclusively to a question as to the distribution of the assets of the firm, contained no feature of an adjudication with respect to Abendroth's copartnership. Indeed, it is manifest from an examination of the register's report that he did not consider that the question as to whether Abendroth was or was not a special partner had any material bearing on the question as to how the money in the hands of the assignee should be distributed among the creditors. In either case, he considered that the claim should not be expunged or diminished. But even if, for the sake of argument, we concede that this last order of the judge was in effect an adjudication that Abendroth was a special partner, there is nothing in the judgment of the court below which denies its validity. The latter judgment also holds Abendroth to be a special partner, and as such liable, under the statute, in the same manner that he would be if he were a general partner. This is shown in the opinion of the court, which very properly holds that the statute, in fixing this liability on account of non-compliance with its provisions, does not change his special partnership into a general one, but simply makes him liable as a general partner to creditors. All his relations to his copartners, and their obligations growing out of their relation to him as a special partner, remain unimpaired. If, before the firm became bankrupt, he had been, under his statutory liability, forced to pay a bill or note, or other general debt of the firm, he would have been entitled to indemnity from his partners, and could have recovered back from them the amount with legal interest thereon. The view presented by the court of appeals of New York upon this point, in the case of Durant v. Abendroth, 97 N. Y. 132, 144, is clear and satisfactory: 'Notwithstanding the erroneous statement in the affidavit as to the payment of the capital, the partnership was, in form, a limited partnership, and subject to all the rules applicable to such partnerships. If it had undertaken to make an assignment with preferences, such assignment could not have been sustained on the ground of the violation of the statute. That violation could be taken advantage of only by creditors, and its consequence simply was to give them recourse against the special partner personally, as if he had been a general partner.' Another ground relied on for reversal is that the pendency of the proceedings in bankruptcy is a good plea in abatement of this action. Section 5106 of the Revised Statutes, cited in support of this proposition, formerly section 21 of the act of March 2, 1867, c. 176, (14 St. 526,) provides that 'no creditor whose debt is provable * * * shall be allowed to prosecute to final judgment any suit at law or in equity therefor against the bankrupt until the question of the debtor's discharge shall have been determined; and any such suit or proceedings shall, upon the application of the bankrupt, be stayed to await the determination of the court in bankruptcy on the question of the discharge.' It is only necessary to say that Abendroth was in no sense the bankrupt in those proceedings, nor was he endeavoring to obtain his discharge as a bankrupt debtor in any proceedings in bankruptcy pending at the time this action was commenced. He is not entitled, therefore, to any stay of proceedings which the statute, by its own express terms, provides exclusively for the protection of the bankrupt. The only remaining point relied on by plaintiff in error as a ground for reversal of the judgment below is that the defendants were sued in the action as general partners, and the judgment in favor of the plaintiffs determined that they were general partners, and that the adjudication in bankruptcy of Griffith & Wundram was a judgment against the two partners, which is a bar to any action subsequently brought by the creditor against the two defendants as such general partners. Against this view there is, we think, an insuperable objection. By section 5118 of the Revised Statutes, formerly section 33 of the act of March 2, 1867, c. 176, (14 St. 533,) the rule of the common law, as declared by this court in Mason v. Eldred, 6 Wall. 231, that a judgment against one upon a contract, merely joint, of several persons, bars an action against the others on the same contract, is rendered entirely inapplicable to adjudications in bankruptcy. That section provides: 'No discharge * * * shall release, discharge, or affect any person liable for the same debt for or with the bankrupt, either as partner, joint contractor, indorser, surety, or otherwise.' If the discharge of the two bankrupt partners, which is the final judgment in the proceedings, cannot estop the creditor from afterwards setting up the liability of the third partner for the joint debt, clearly the other and previous adjudication in the course of the proceedings cannot be held to have that effect. Though the action in the court below was brought against the three defendants, the jury was directed by the court to render its verdict against Abendroth alone, and the judgment was entered up against him alone, thus fully recognizing the validity and force of the adjudication of bankruptcy of the other two partners. This form of action for enforcing the liability of a special partner, imposed by the statute of New York, has been decided by the New York court of appeals to be the proper one in the cases of Durant v. Abendroth, 97 N. Y. 132; Sharp v. Hutchinson, 100 N. Y. 533, 3 N. E. Rep. 500; and Durant v. Abendroth, 69 N. Y. 148. We think these decisions are correct. The judgment of the court below is affirmed. BLATCHFORD, J., took no part in the decision of this case.
132.US.91	A bill in equity prayed for an injunction restraining the defendant from trespassing on the land of the plaintiff and taking mineral and ore therefrom, and that he account to the plaintiff for the value of the ore already taken therefrom. After a hearing on pleadings and proofs, the Circuit Court made a decree granting a perpetual injunction, and ordering an account before a master- Held, that the decree was not final or appealable.	This is a suit in equity, brought in the circuit court of the United States for the eastern district of Arkansas, by Matt Martin against the Keystone Manganese & Iron Company. The bill alleges that the plaintiff, owning a piece of land in Independence county, Ark., conveyed it, in June, 1853, with other lands, to one Smith and his heirs forever, subject to the condition that Martin retained to his heirs, representatives, and assigns 'a perpetual and unlimited right in fee to all the stones and minerals that may be in or upon said lands, and full and unquestioned power and right to enter said lands for the purpose of digging, quarrying, and mining upon said lands, with full power and right of ingress and egress thereto and therefrom, and upon said lands to remain and erect buildings thereon, and to use such timber and other materials as may be convenient and proper for the excavation, preservation, manufacture, and removal of such stones and minerals and improvements as may be connected with the working of said stones and minerals; it being well understood by the parties hereto that the right of sale and all else is hereby conveyed to said Thomas C. Smith, except the right to the stones and minerals on said lands, which, with all needful and proper rights and privileges to obtain, prepare for market, and remove the same, are expressly reserved from sale.' The deed was executed by Martin alone. The bill further alleges that ever since said deed the plaintiff has been and now is in the possession of the mineral and ore in and upon the land; that there are large and valuable deposits of manganese therein; and that the defendant, in December, 1885, unlawfully entered upon said mineral deposits, and began to mine and remove therefrom the manganese, and had carried it away, to the value of more than $5,000. It prays for an injunction restraining the defendant from the commission of further trespasses during the pendency of the suit; that an account be had of the quantity and value of the ore taken by the defendant from the land; and that it be decreed to account to the plaintiff therefor, and be perpetually enjoined from further trespassing upon the mineral and ore in the land. The defendant put in an answer, setting up its right to mine and remove the manganese ore by virtue of its having obtained such right, for a specified period of time, from persons who had become the owners of the land through a sale of it for the non-payment of taxes, and also setting up a statute of limitation. After a replication, proofs were taken on both sides, and the circuit court decided in favor of the plaintiff, upon the ground that, under the laws of Arkansas in force at the time the taxes were assessed, for the non-payment of which the land was sold, it was necessary that the mine, having been separated from the surface soil, should be separately assessed, and it could not be sold for taxes, except upon such an assessment; and that neither the mine, nor the mineral in it, was, in the present case, assessed or sold. The court made a decree perpetually enjoining the defendant from entering upon or removing the mineral or any part thereof from the land, and further ordering that an account be taken of the quantity and value of the mineral and ore already removed by the defendant from the land, and that the defendant account to the plaintiff for its value, and appointing a master to take said account, and to hear evidence, and report the same to the court. From that decree the defendant has appealed to this court, and the case has been argued by the appellee on its merits, and submitted on a printed brief by the appellant. We think that the decree is not a final decree, and that this court has no jurisdiction of the appeal. The decree is not final, because it does not dispose of the entire controversy between the parties. The bill prays only for an injunction and an account of the quantity and value of the ore taken from the land by the defendant. The injunction is granted, but the account remains to be taken. The case is not one where nothing remains to be done by the court below, except to execute ministerially its decree. In all cases like the one before us this court has uniformly held that the decree was not final and was not appealable. The principal cases in which it has held that the decree was not appealable, because not final, are the following: The Palmyra, 10 Wheat. 502; Perkins v. Fourniquet, 6 How. 206; Pulliam v. Christian, Id. 209; Barnard v. Gibson, 7 How. 650; Craighead v. Wilson, 18 How. 199; Beebe v. Russell, 19 How. 283; Humiston v. Stainthorp, 2 Wall. 106; Railroad Co. v. Swasey, 23 Wall. 405; Bostwick v. Brinkerhoff, 106 U. S. 3, 1 Sup. Ct. Rep. 15; Grant v. Insurance Co., 106 U. S. 429, 1 Sup. Ct. Rep. 414; Dainese v. Kendall, 119 U. S. 53, 7 Sup. Ct. Rep. 65; Parsons v. Robinson, 122 U. S. 112, 7 Sup. Ct. Rep. 1153; while the decree has been held final, for the purposes of an appeal, in Ray v. Law, 3 Cranch, 179; Whiting v. Bank, 13 Pet. 6; Forgay v. Conrad, 6 How. 201; Bronson v. Railroad Co., 2 Black, 528; Railroad Co. v. Express Co., 108 U. S. 24, 2 Sup. Ct. Rep. 6; Ex parte Norton, 108 U. S. 237, 2 Sup. Ct. Rep. 490; Iron Co. v. Meeker, 109 U. S. 180, 3 Sup. Ct. Rep. 111. In The Palmyra, a prize case, the captors had filed a libel in the district court, and that court had dismissed it, without costs and damages against the captors. The circuit court affirmed the decree of restitution, with costs and damages. The libelants having appealed to this court, the appeal was dismissed, on the ground that the decree of the circuit court was not final, Chief Justice MARSHALL saying: 'The damages remain undisposed of, and an appeal may still lie upon that part of the decree awarding damages. The whole cause is not, therefore, finally determined in the circuit court; and we are of opinion that the cause cannot be divided so as to bring up successively distinct parts of it.' In Perkins v. Fourniquet the circuit court decreed that the plaintiffs were entitled to two-sevenths of certain property, and referred the matter to a master to take and report an account of it, and reserved all other matters in controversy until the coming in of the master's report. It was held that that was not an appealable decree, Chief Justice TANEY saying: 'The appellant is not injured by denying him an appeal in this stage of the proceedings; because these interlocutory orders and decrees remain under the control of the circuit court, and subject to their revision, until the master's report comes in, and is finally acted upon by the court, and the whole of the matters in controversy between the parties disposed of by a final decree. And, upon an appeal from that decree, every matter in dispute will be open to the parties in this court, and may all be heard and decided at the same time.' In Pulliam v. Christian a decree of the circuit court set aside a deed made by a bankrupt before his bankruptcy, and directed the trustees under that deed to deliver over to the assignee in bankruptcy all the property remaining undisposed of in their hands, but without deciding how far the trustees might be liable to the assignee for the proceeds of sales previously made and paid away to the creditors, and directed an account to be taken of these last-mentioned sums, in order to a final decree. It was held that the decree was not appealable, Mr. Justice McLEAN saying: 'There is no sale or change of the property ordered which can operate injuriously to the parties.' In Barnard v. Gibson the suit was one for the infringement of letters patent. By the decree of the circuit court a perpetual injunction was awarded, and it was referred to a master to ascertain and report the damages which the plaintiff had sustained. It was held that the decree was not appealable. The decree in that case was in all substantial particulars like the decree in the present case. In Craighead v. Wilson the decree of the circuit court ascertained the heirship of the plaintiffs and their relative rights in a succession, but referred it to a master to state accounts between the plaintiffs and defendants, and ascertain how much property remained in the hands of the latter, and how much had been sold, with the prices, and to ascertain what might be due from either of the defendants to the plaintiffs. It was held that the decree was not appealable. In Beebe v. Russell the bill prayed that the defendants might be ordered to convey to the plaintiff certain pieces of property, which it was alleged they fraudulently withheld from him, and account for the rents and profits. The circuit court decreed that the defendants should execute certain conveyances and surrender possession, and then referred the matter to a master to take an account of the rents and profits, giving instructions in regard to the manner of taking it. This court stated that the object of the statute in regard to appeals was to prevent a case from coming to this court from the courts below, in which the whole controversy had not been determined finally, and that such final determination might be had in this court; and that whenever the whole controversy had been determined by the circuit court, and ministerial duties only were to be performed, although an amount due remained to be ascertained, the decree was final. The decree in that case was held not to be appealable. In Humiston v. Stainthorp, which was a patent suit, the decree was like that in Barnard v. Gibson, and the appeal was dismissed. In Railroad Co. v. Swasey it was held that a decree of foreclosure and sale was not final, in the sense which allowed an appeal from it, so long as the amount due upon the debt had not been determined, and the property to be sold had not been ascertained and defined. In Bostwick v. Brinkerhoff, Chief Justice WAITE stated the principle as follows: 'The rule is well settled and of long standing that a judgment or decree, to be final, within the meaning of that term as used in the acts of congress giving this court jurisdiction on appeals and writs of error, must terminate the litigation between the parties on the merits of the case, so that, if there should be an affirmance here, the court below would have nothing to do but to execute the judgment or decree it had already rendered.' This view was repeated in Grant v. Insurance Co., where an appeal by the defendant from a decree in a foreclosure suit was dismissed, the decree neither finding the amount due nor ordering a sale of the mortgaged property, although it overruled the defense, declared the plaintiff to be the holder of the mortgage, and, in order to ascertain the amount due to it and other lien creditors and for taxes, referred the case to a master, and appointed a receiver to take charge of the property. In Dainese v. Kendall the principle was again asserted that 'a decree, to be final for the purposes of an appeal, must leave the case in such a condition that if there be an affirmance here the court below will have nothing to do but to execute the decree it has already entered.' The same view was maintained in Parsons v. Robinson. It remains to see the principle upon which this court has acted in holding decrees to be appealable as final decrees. In Ray v. Law it was held that a decree for a sale under a mortgage was an appealable decree. Of course, this involves the proposition that the court below had ascertained and fixed the amount due under the mortgage. In Whiting v. Bank this court held that a decree of foreclosure of a mortgage and for a sale was a final decree, and that it was not necessary to the finality of it that the sale should have taken place and been confirmed. The court said that if the sale had been completed under the decree, the title of the purchaser would not have been overthrown or invalidated even by a reversal of the decree; that, consequently, the title of the defendants to the land would have been extinguished, and their redress upon a reversal would have been of a different kind from that of a restitution of the land sold; and that, under a decree of foreclosure and sale, the ulterior proceedings were but a mode of executing such decree. A leading case where this court held the decree below to be final was that of Forgay v. Conrad. The decree in that case ordered that certain deeds be set aside as fraudulent and void; that certain lands and slaves be delivered up to the plaintiff; that one of the defendants pay a certain sum of money to the plaintiff; that the plaintiff have execution for those several matters; and that the master take an account of the profits of the lands and slaves, and an account of certain money and notes; and then concluded as follows: 'And so much of the said bill as contains or relates to matters hereby referred to the master for a report is retained for further decree in the premises; and so much of the said bill as is not now, nor has been heretofore, adjudged and decreed upon, and which is not above retained for the purposes aforesaid, be dismissed without prejudice; and that the said defendants do pay the costs.' It was held that that decree was a final decree, and appealable; Chief Justice TANEY saying: 'And when the decree decides the right to the property in contest, and directs it to be delivered up by the defendant to the complainant, or directs it to be sold, or directs the defendant to pay a certain sum of money to the complainant, and the complainant is entitled to have such decree carried immediately into execution, the decree must be regarded as a final one to that extent, and authorizes an appeal to this court, although so much of the bill is retained in the circuit court as is necessary for the purpose of adjusting by a further decree the accounts between the parties pursuant to the decree passed.' In Bronson v. Railroad Co. it was held that a decree for the sale of mortgaged premises was a final decree, settling the merits of the controversy, and that the subsequent proceedings were simply a means of executing the decree. The same principle was applied in Railroad Co. v. Express Co. and in Ex parte Norton. In Iron Co. v. Meeker it was held that where a decree decides the right to the property in contest, and the party is immediately entitled to have it carried into execution, it is a final decree, although the court below retains possession of so much of the bill as may be necessary for adjusting accounts between the parties; the court remarking that such a case was different from a suit by a patentee to establish his patent and recover for infringement, because there the money recovery was a part of the subject-matter of the suit. Within the principles established by the foregoing cases, the decree now before us was not a final decree, and the appeal must be dismissed.
129.US.170	This court has no jurisdiction of an appeal unless the transcript of the record is filed here at the next term after the taking of the appeal. It is not proper, on a motion to dismiss an appeal from a decree, to decide whether a prior decree was a final decree, or what orders and decrees made by the court below in the cause prior to the making of the decree appealed from can be reviewed here on the appeal. Where the decree appealed from awarded a money decree against one defendant, and the plaintiff appealed, and the obligees named in the appeal bond included that defendant and other defendants, and that defendant and some of the others moved to dismiss the appeal, on the ground that that defendant should be the sole obligee, and that the only matter for review was as to the amount awarded against that defendant : Held, that the bond was in proper form, and that the motion must be demed.	In this case, on the 8th of June, 1885, a decree was made by the court below in the following language: 'This cause coming on for final hearing upon the pleadings, depositions, and documentary evidence produced before the court, and the cause having been argued by counsel, and the court being sufficiently advised in the premises, it is ordered and decreed that the complainant's bill be dismissed for want of equity as against the defendants William C. Goudy, Volney C. Turner, George Chandler, Samuel B. Chase, Ebenezer Buckingham, John De Koven, John J. Johnson, S. S. Merrill, the North Chicago City Railway Company, and the Chicago, Milwaukee & St. Paul Railway Company, with their costs to be taxed by the clerk. It is further ordered and decreed that so much of the complainant's bill as relates to the certificate of one hundred and ten and two-thirds shares of the capital stock, issued to A. B. Stickney & Company, dated September 30, 1881, be dismissed for want of equity. It is further ordered and decreed that all relief be denied to the complainant upon all matters and things in controversy herein, except as to the amount of money paid by the defendant William C. Goudy for right of way, in execution of the contract between him and A. B. Stickney & Company, of May 28, 1880; and, for the purpose of ascertaining said amount of money, it is ordered that this cause be retained as to the other defendants, and that it be, and is hereby, referred to Henry W. Bishop, one of the masters in chancery of this court, to take additional testimony as to such amount, and that he make report of the amount so paid, and that, on the making of such report, such further decree will be rendered as may be equitable. It is further ordered that, for the better discovery of the matters aforesaid, the parties are to produce before the said master, upon oath, all deeds or books, papers and writings, in their custody, or power relating thereto, and are to be examined on oath as the said master shall direct. And thereupon the complainant prays an appeal to the supreme court, which is allowed upon his filing a bond in the penal sum of five hundred dollars, with provisions required by law, and with security to be approved by the court.' The bond thus referred to was not given, nor was the appeal perfected, nor was the record filed in this court at its October term, 1885. On the 14th of July, 1887, the master in chancery having made a report in pursuance of the directions of the decree of June 8, 1885, and exceptions having been taken thereto by both parties, the court made the following decree: 'It is ordered, adjudged, and decreed as follows, viz.: That the exceptions of both the complainant and the defendant the Chicago & Evanston Railroad Company to the report of the master in chancery, filed herein on the 31st day of January, 1887, be, and the same are hereby, overruled, and the said report approved and affirmed; that said Chicago & Evanston Railroad Company do forthwith pay unto said complainant the sum of sixty-five hundred and thirteen dollars, ($6,513,) together with interest upon the same from the 30th day of January, 1887, at the rate of six per cent. per annum, and also costs of said reference to the master, to be taxed by the clerk of this court, and also the costs of this suit, for which plaintiff may have execution. It is further ordered and decreed that all other relief prayed in the complainant's bill be denied, as against said defendant the Chicago & Evanston Railroad Company, and that the complainant's bill be dismissed our of court for want of equity as against the remaining defendants, T. W. Wadsworth, Edwin Walker, Elijah K. Hubbard, J. C. Easton, Julius Wadsworth, Hugh T. Dickey, J. Millbank, James Stillman, James T. Wood ward, E. L. Frank, William Rockefeller, Selah Chamberlain, and George Smith, with their reasonable costs, to be taxed by the clerk, and that they have execution therefor against the said complainant. And thereupon the complainant prays an appeal to the supreme court of the United States, which is allowed upon his filing a bond in the penal sum of five hundred dollars, with provisions required by law, and with security to be approved by the court.' This appeal was perfected, an appeal-bond was given, and the record was filed in this court on the 17th of October, 1887. The obligors in that appeal-bond are James J. Hill, W. P. Clough, and E. Sawyer; the obligees are the Chicago & Evanston Railroad Company, the Chicago, Milwaukee & St. Paul Railway Company, the North Chicago City Railway Company, William C. Goudy, Volney C. Turner, John De Koven, George Chandler, T. W. Wadsworth, Edwin Walker, Elijah K. Hubbard, Samuel B. Chase, Ebenezer Buckingham, John J. Johnson, J. C. Easton, S. S. Merrill, Julius Wadsworth, Hugh T. Dickey, J. Millbank, James Stillman, James T. Woodward, E. L. Frank, William Rockefeller, Selah Chamberlain, and George Smith. The condition of the bond is as follows: 'Whereas, lately, at the July, 1887, term of the United States circuit court for the Northern district of Illinois, in a suit depending in said court, wherein said James J. Hill was complainant, and the Chicago & Evanston Railroad Company and the other above-named obligees of this bond were defendants, a decree was rendered from which the said James J. Hill has taken an appeal to the supreme court of the United States: now, the condition of the above obligation is such that if the said James J. Hill shall prosecute his appeal with effect, and answer all costs if he fails to make his plea good, then the above obligation to be void; otherwise to remain in full force and virtue.' Four motions are now made. One is a motion by the Chicago& Evanston Railroad Company, T. W. Wadsworth, Edwin Walker, Elijah K. Hubbard, and J. C. Easton, to dismiss, as to each of them, the appeal from the decree of June 8, 1885, on the ground, among others, that the transcript of the record was not filed in this court at October term, 1885. This motion must prevail. It is well settled, by repeated decisions of this court, that it has no jurisdiction of an appeal unless the transcript of the record is filed here at the next term after the taking of the appeal. The appeal in the present case was prayed in open court on the 8th of June, 1885. Credit Co. v. Railway Co., 128 U. S. 258, ante, 107, and cases there cited. The second motion is by the North Chicago City Railway Company, the Chicago, Milwaukee & St. Paul Railway Company, William C. Goudy, Volney C. Turner, George Chandler, Samuel B. Chase, Ebenezer Buckingham, John De Koven, John J. Johnson, and S. S. Merrill, to dismiss, as to each of them, the appeal from the decree of June 8, 1885, on the ground, among others, that the transcript of the record was not filed here at October term, 1885. This motion is granted for the reason before stated. The third motion is by the North Chicago City Railway Company, the Chicago, Milwaukee & St. Paul Railway Company, William C. Goudy, Volney C. Turner, George Chandler, Samuel B. Chase, Ebenezer Buckingham, John De Koven, John J. Johnson, and S. S. Merrill, to dismiss, as to each of them, the appeal from the decree of July 14, 1887, on the following grounds: (1) That the decree of June 8, 1885, was a final decree as to them; and (2) that the bond filed on the appeal from the decree of July 14, 1887, does not show that it was filed in pursuance of the decree of June 8, 1885, but recites only an appeal from the decree of July 14, 1887. It is not proper, on a motion to dismiss the appeal from the decree of July 14, 1887, to decide whether the decree of June 8, 1885, was a final decree, or what orders and decrees made by the circuit court prior to the making of the decree of July 14, 1887, can be reviewed here on the appeal from the latter decree. Those questions can only be considered when that appeal shall come up for hearing on its merits. The fourth motion is by the Chicago & Evanston Railroad Company, T. W. Wadsworth, Edwin Walker, Elijah K. Hubbard, and J. C. Easton, to dismiss the appeal as to the decree of July 14, 1887, on the ground that the Chicago & Evanston Railroad Company, being the sole party against whom the decree of July 14, 1887, was rendered, ought to be the sole obligee in the appeal-bond, the other persons named in the bond as obligees not being parties to the appeal; that the only matter which can be brought before this court for review is as to the amount fixed by the decree of July 14, 1887, and which the Chicago & Evanston Railroad Company was adjudged to pay; that the decree of June 8, 1885, was final as to the other questions; and that the appeal from the decree of July 14, 1887, should be limited to that decree, and proper orders, as to bond and otherwise, to that end, should be made. We see no objection to the terms of the appeal-bond, in respect of the parties named in it as obligees. It may very well be that the appellant will seek, on the hearing of the appeal from the decree of July 14, 1887, to obtain a decree against the persons making this motion; and it cannot affect the validity of the bond, or the integrity of the appeal, either as respects the Chicago & Evanston Railroad Company, or the other parties making the motion, that the bond runs to the obligees named in it. The motion must therefore be denied in that respect, as it must also in regard to the other grounds alleged for the motion, for the reason before stated, that it is not proper, on a motion to dismiss the appeal from the decree of July 14, 1887, to decide what questions may properly be involved on the hearing of that appeal. Ordered accordingly.
131.US.151	A demurrer to a bill in equity cannot introduce as its support new facts which do not appear on the face of the bill, and which must be setup by plea or answer. Where there is matter in the bill which is properly pleaded, and is properly ground for equitable relief, and requires an answer or a plea, a demurrer to the whole bill will be overruled. Where a bill is taken as confessed by one of two defendants before d decree is made dismissing the bill, on demurrer, as to the other defendant, the latter can appeal from the decree, although it does not dispose of the .case as to his codefendant.	This is a suit in equity, brought in the circuit court of the United States for the estern district of Texas, by James Reid Stewart. The original bill was filed against James L. Tait and his wife and Branch T. Masterson. Tait and wife demurred to the bill, among other things, for multifariousness, as did also Masterson. On a hearing, the demurrers were sustained, with leave to amend the bill. The plaintiff then filed an amended bill against Masterson and Tait. It was taken as confessed as to Tait, and an order made that the cause be proceeded in ex parte as to him. Masterson demurred to the amended bill, and the demurrer was sustained, and the bill as against him was dismissed. The plaintiff has appealed to this court. The allegations of the amended bill are substantially as follows: On the 10th of May, 1878, at Glasgow, Scotland, Stewart and Tait entered into a written agreement. By that agreement, Stewart's son and Tait were to proceed together to Texas, and Tait was to purchase 2,560 acres of land, in such place as might seem to him most advantageous, at a price not to exceed 12 shillings per acre, title-deeds to be made out and recorded in the name of Stewart, and he to authorize payment of the purchase money on delivery of the title-deeds to the order of such party as might be named therein, money for improvements to be furnished by Stewart as required by Tait, he to give receipts as acting for Stewart, and the farm to be worked on equal shares, and profits to be equally divided between Stewart's son and Tait, the agreement to remain in force for five years from the date of purchase of the land; a further tract of 2,560 acres to be purchased in the names of Tait and Stewart's son, on a credit of four years, payment to be made out of realized profits; and until such additional land should be paid for, but not exceeding five years, Stewart should not require the repayment of moneys advanced; interest to be paid for such moneys at the rate of 6 per cent. per annum; Tait to do his best as to supervision and guidance of Stewart's son, and to have the management and be responsible to Stewart; the amount to be advanced by Stewart not to exceed in all 3,250 sterling. The amended bill then makes the following allegations: In pursuance of such agreement, Tait, in June, 1878, purchased for Stewart and in his name, and went into the occupancy of, and held for him as his agent, for five years, 4,605 acres of land in Bexar county, Tex., known as the 'Gasper Flores Survey No. 13,' and situated within the territory of the McMullen grant, thereinafter described and bounded as set forth; Stewart paid for the land $9,000, and expended in improvements, as owner, $6,147.51, and thereby increased the value of the land at least $3 per acre, making the whole value of the improvements, as made by him, $19,962.51. He paid about $1,000 taxes on the land. The title was from the government of Spain, which conveyed in fee, to the Indians of San Jos e mission, land known as the 'McMullen Grant,' in the counties of Medina and Bexar. It was conveyed by the Indians to one Garza, and by him and the Indians to one John McMullen, in fee. While McMullen owned and occupied it, and in February, 1840, one Maverick, being the owner of Texas land certificate No. 276, as the assignee of Gasper Flores, the grantee of the state of Texas, located such certificate on a portion of the land within the McMullen grant known as the 'Gasper Flores Survey No. 13,' being the identical land owned by Stewart, and thereinbefore described, and afterwards procured a patent for the land, and became vested with all the title of the republic or state of Texas thereto, and claimed survey No. 13, adversely to the title and possession of McMullen. Afterwards, McMullen conveyed the McMullen grant to one Howard, and he, in February, 1851, commenced a suit in equity, styled 'Chancery Suit No. 10,' in the circuit court of the United States for the Western district of Texas, to remove the cloud upon his title. Maverick was made a party to that suit, and appeared, and on the final hearing i was decreed that the heirs of Howard (he having died, and they having been substituted as plaintiffs,) should recover the McMullen grant from Maverick and the other defendants, and that the title of said heirs was free from all clouds, and that all patents, locations, and surveys, owned by the defendants in the suit, were void, and they were ordered to cancel the same, and the title of said heirs to the McMullen grant was adjudged to be a good title. On a reference made by said decree, a master reported that Maverick appeared to have claimed to be the owner of the Gasper Flores survey No. 13, being the land of Stewart, and that the same was situated within the limits of the McMullen grant. The master made a deed in triplicate, conveying all the interest of the heirs of McMullen to the McMullen grant, and the heirs of Howard acquired legal title to and possession of that grant, and one Castro purchased from the heirs of Howard, and became the owner of said survey No. 13, and went into possession thereof, and afterwards sold the same in fee to Stewart for $9,000, and delivered possession thereof to him in June, 1878; the deed expressing the consideration of $10,500, and being duly recorded in Bexar county, as was also the said deed to Castro. Thus, Stewart's land became and was land titled from the state, evidence of the appropriation of which was on the county records of the county of Bexar, and in the general land-office of the state, according to the provisions of section 2, art. 14, of the constitution of the state. The heirs of Howard were, by virtue of said decree, put in possession of all the land in the McMullen grant claimed by the defendants in suit No. 10, and the state of Texas acquiesced in the decree, and caused the McMullen grant to be marked on the maps of the general land-office by its boundaries within the counties of Bexar and Medina, and the grant was marked on the county maps of each those counties by authority of the state, and the heirs of Howard and those holding under them have been required to pay state and county taxes on the land, and the state and the county of Bexar have levied taxes on Stewart's land, and collected the same from him as owner thereof, ever since he purchased it, and he has ever since been in the actual possession and occupancy of the same, and the improvements thereon, and thus his appropriation of the land was evidenced by the occupation of the owner or some person holding for him, under the provisions of section 2, art. 14, of the state constitution. Masterson became and was a party defendant to said suit No. 10, before the final determination of the same, as the assignee in bankruptcy of one Herndon, a defendant therein, (who had located a certificate on and taken out a patent to lands within the McMullen grant, and whose claim was a cloud on the McMullen title,) and had full knowledge of the decree and of the proceedings in suit No. 10, before and after the decree, and knowledge of the possession and title of the heirs of Howard and of Castro, and of Stewart's title, possession, and improvements, and that Tait was, during five years from June 22, 1878, holding Stewart's land, and the improvements thereon, as the agent of Stewart. The foregoing decree and conveyances vested in Stewart the absolute property in said 4,605 acres of land, but Masterson and Tait fraudulently colluded with each other that Tait should abandon Stewart's land, and all the improvements thereon, and deliver the same over to Masterson for the consideration of $750, to be paid by him to Tait, with intent to cheat Stewart out of the value of said improvements, and deprive him of his title to the land. Masterson, with such intent, and in contempt of said decree, and in violation of said provision of the constitution of Texas, fraudulently located and caused to be surveyed the whole of Stewart's land, as vacant and unappropriated domain of the state of Texas, by virtue of several land certificates issued by the state, and owned by Masterson, and caused the surveys thereof and the field-notes of the surveys to be recorded in the office of the county surveyor of Bexar county, with particulars set forth in the amended bill, and procured patents to issue to himself thereon to the lands described in such surveys and field-notes, covering Stewart's said land. In August, 1882, Masterson commenced an action of ejectment or trespass to try title, in the district court of Bexar county, against Tait, to acquire possession of Stewart's said land. The suit was brought for the purpose, among other things, of furnishing a pretext for Tait to abandon Stewart's property, and, having served its purpose, it was dismissed by Masterson, who paid all the costs thereof; and Tait, in pursuance of such collusive agreement and the payment to him of $750 by Masterson, surrendered, and Masterson received occupancy of, 1,280 acres of the land, and a dwelling-house and improvements thereon, and pretends to hold the same as owner, and also to claim title and the right of possession to the remainder of Stewart's land, unoccupied by him, under and by virtue of Masterson's said locations and patents thereon. The amended bill tenders to Masterson the amount of the actual expenses incurred by him in paying for the certificates, surveys, and patents. Tait is insolvent, and if, upon a final hearing, the title of Masterson should be decreed to be paramount to that of Stewart, the value of Stewart's improvements on the land, namely, $19,962.51, would be lost to him, unless adjudged to him against Masterson by a decree, and made a lien upon the land. The amended bill waives an answer on oath as to all matters except those specified in six interrogatories, as to which an answer on oath is required. It prays for an accounting by Masterson as to the cost incurred by him in the purchase of his certificates, the location and running of the surveys, and the procurements of patents on the 4,605 acres of land; that the title acquired by him, if any, be by a decree vested in Stewart, on the payment of the amounts so expended by Masterson; that the cloud upon Stewart's title be removed, and Masterson forever barred of all interest in the land; and that Stewart be quieted in his title and possession, and be decreed to be the owner. There is an alternative prayer that, in case he title to the 4,605 acres be found to be in Masterson, then the amount of the value of the improvements made on the land be adjudged to Stewart against Masterson, and made a lien on the land; that the land be sold to satisfy the lien; and that Masterson be foreclosed and barred of all interest in the land, except the equity of redemption before sale by the payment of the amount of the lien; and for general relief. The demurrer of Masterson purports to be a demurrer to the amended bill, and to the original bill as amended by the amended bill. It demurs thereto, and to the jurisdiction of the court sitting in equity, and assigns several grounds of demurrer: (1) That the amended bill sets up substantially matters against which the court sustained the demurred to the original bill, in that it appeared by the original bill, and cause No. 10 in equity therein referred to and stated as a part of Stewart's title, and the exhibits, order, and decree in cause No. 10, that Stewart's pretended title to the lands sued for is based on the so-called 'McMullen Grant,' which the supreme court of Texas in the case of McMullen v. Hodge, 5 Tex. 34, and in Howard v. McKenzie, 54 Tex. 171, declared to be vacant public domain; and the decision in McMullen v. Hodge was rendered long before Stewart purchased, and McMullen, against whom it was rendered, is a remote vendor of Stewart, and Stewart's claim is under him; and Stewart has not, by the amended bill, set up any other claim than the void one defectively set up in the original bill; and the amended bill does not contain proper allegations to entitle him to assert a claim for the value of improvements. (2) That there is a want of equity in the bills. ( ) That Tait has no interest in the matters concerning which the decree is sought against Masterson, and no relief is asked against Tait, and no facts are alleged which would entitle Stewart to maintain this suit against Masterson and Tait, and there is a misjoinder of parties defendant. (4) That Stewart has a full, complete, and adequate remedy at law. We think the demurrer to the amended bill ought to have been overruled, and Masterson put to his answer thereto. It appears by the opinion of the court below, filed in deciding on the demurrer to the original bill, that the case made by that bill against Masterson and Tait was substantially the same as the case made against them by the amended bill, and that the demurrer to the original bill was sustained on the ground of multifariousness, because, in addition, it sought an account from Tait personally, as agent or trustee of Stewart, in respect to funds intrusted by Stewart to Tait, and also prayed to have established a lien in respect thereto, in favor of Stewart, upon a homestead which it was alleged Tait had purchased for himself and his wife with such funds. The court was of opinion that Tait was a proper party to the bill with Masterson, in respect to the matters other than the accounting by Tait, and that Stewart might reform his original bill, and so frame it as to embrace solely the matters against Masterson and Tait relating to Stewart's title to the land in question, and the alternative claim to a right to be paid for the value of permanent improvements made upon the land as against Masterson. It is assigned as error by Stewart that nowhere in the original bill or in the amended bill is it admitted that the McMullen title, which Stewart is litigating in this case, is the identical McMullen title which has been at various times litigated in the courts of Texas; that the court below had no authority to take judicial notice of the identity of the grant in litigation with another grant referred to it in the state reports, when this identity was not admitted in the bill demurred to; and that that court could derive knowledge of such identity only from evidence properly offered and admitted, after due allegations in a plea or answer. It is very clear that the present demurrer introduces as its support new facts which do not appear on the fact of the bill, and which must be set up by plea or answer. Story, Eq. Pl. (9th Ed.) §§ 447, 448, 503, 647. In addition to this, as there is matter properly pleaded in the amended bill, and properly ground for equitable relief, which requires an answer or a plea, and as the demurrer is to the whole bill, it ought to have been overruled. The case, as stated, shows there is no plain, adequate, and complete remedy at law. As the order taking the bill as confessed by Tait, and directing that the cause be proceeded in thenceforth ex parte as to him, was entered before the decree was made sustaining the demurrer of Masterson, and dismissing the bill as against him, that decree is final as to him, and one from which he could appeal. There was no decree from which Tait could appeal, and when the case returns to the circuit court a final disposition of it can be made as against Tait. He was properly made a defendant with Masterson, although no relief was prayed against him in respect of the matters in which he is alleged to have been concerned with Masterson. The decree of the circuit court is reversed, and the case is remanded to that court, with a direction to overrule the second demurrer of Masterson, and to take such further proceedings as shall not be inconsistent with this opinion.
129.US.530	Claims 1 and 2 of letters patent No. 178,463, granted June 6, 1876, to George M. Peters, for an improvement in tools for attaching sheet-metal moldings, on an application filed March 7, 1876, namely, "1. A sheath for applying metallic moldings, said sheath being furnished with a stop for advancing the molding, all substantially as and for the purpose specified, 2. The within described sheath for applying metallic moldings, said sheath being furnished with recesses fl g' and a key G, or their equivalent stops, as and for the purposes explained," cover improvements wlich are merely adaptations of old devices to new uses, not involving invention. Claim 3 of the patent, namely, "3. A sheath composed of two grooved bars A B B E' bolts or screws C, and washers D, whereby the sheath is rendered capable of adjustment to contain moldings of different diameters, as herein set forth," is not infringed by an apparatus in which no washers are used for adjustment.	This is a suit in equity, brought in the circuit court of the United States for the Southern district of Ohio, in January, 1882, by George M. Peters against the Active Manufacturing Company, for the alleged infringement of letters patent No. 178,463, granted June 6, 1876, to the plaintiff, George M. Peters, for an improvement in tools for attaching sheet-metal mouldings, on an application filed March 7, 1876. The specification, drawings, and claims of the patent are as follows: My invention comprises a peculiarly constructed sheath or holder, wherewith the ornamental moulding on the top of the carriage dashes may be applied in the most expeditious manner, and without bending or buckling, or otherwise injuring or marring, either said moulding or its supporting dash-board. In its preferred form, said sheath consists of a two-part holder or receiver, connected together with bolts and washers, and provided with a longitudinal groove or channel of such size and shape as to readily inclose the moulding that is to be applied to the upper edge of the dash, a key or other suitable stop being fitted within the sheath, to prevent the moulding slipping through said longitudinal groove when the device is in use. The sheath is rendered capable of carrying mouldings of various lengths and sizes by an arrangement of adjusting devices, whose details of construction will be hereinafter more fully explained. In the accompanying drawing, forming part of this specification, Fig. 1 is a perspective view of a two-part sheath in an inverted position, the middle portion and rear end of the device being broken away. Fig. 2 is a perspective view of the moulding detached from sheath. Fig. 3 is a plan showing the moulding located within the sheath. Fig. 4 is a longitudinal section through the rear end of the sheath, with a screw-stop for the moulding to bear against. Fig. 5 is a transverse section at the line, x, x, showing the moulding encased within the sheath; and Figs. 6 and 7 represent modifications of the holder. A and B represent two metallic bars of any appropriate size, and having their lower outer edges slightly beveled off at a and b. These bars are maintained in a parallel position with reference to each other by means of bolts or screws, C, and washers or fillings, D. Instead of washers and bolts or screws, C, the bars may be maintained in parallel position, and separated or brought nearer together, by means of right and left screws, the right-hand thread of said screw engaging a female screw in one bar, and the left-hand thread engaging a female screw in the other. The bar, A, has a longitudinal groove, E, formed along its inner surface, and near the lower edge of said bar. E' is a precisely similar groove, made in a other bar, B, and when the two members, A, B, of the sheath are joined together the grooves, E, E', form a channel that is approximately circular in its transverse section. F represents a hook, shackle, or link, pivoted to the front end of the sheath, and guttered at f, to avoid contact with the upper edge of the dash. The bars are furnished with undercut notches, g, g', to receive a detachable key, G, which lat serves as a stop or abutment for the rear end of the moulding to rest against. A series of similar notches may be made in the bars, A, B, at such distances from the front end of the sheath as will correspond with the various lengths of mouldings; or, if preferred, the notches and key may be dispensed with, and a screw, H, may be arranged for the moulding to bear against, as seen in Fig. 4. This screw may be adjusted out or in to agree with the length of moulding. The advancing end of the sheath is rounded off at I, so as not to tear up the leather coverings of the dash while the moulding is being applied. The moulding consists of a sheet-metal tube, J, having a longitudinal slot or parting, K, and a flaring or trumpet-mouthed end, L. This trumpet mouth is located at the forward end of the moulding. As represented in Fig. 7, the sides of the moulding, M, are straight and have an outward flare, the top of said moulding being somewhat crowning. This illustration shows a three-part sheath, the two outer bars, N, N', being secured to the central member, O, by right and left hand screws, n, n', and nuts P. Fig. 6 represents the sheath as made of a single piece of metal, or other suitable material. 'Previous to using the sheath the key, G, is first inserted in the notches, g, g', at such a distance from the end, I, as will correspond with the length of moulding J, which latter is then slid into the groove, E, E', the rear end of said moulding being brought in contact with the vertical edge of said key When thus located within the sheath, the flaring mouth, L, of the moulding has a slight projection beyond the chamfered end, I, of the bars, A, B, as represented in Fig. 3. The carriage dash is then held perfectly rigid, and the upper margins of the coverings of the same are inserted in the flaring end, L, of the moulding, after which any suitable power is applied to the hook, F, to draw the sheath along the top of said margins or projections. jections. As the sheath advances, the flaring mouth serves to conduct the leather margins into the slot, K, of the moulding, and as the grooves, E, E', prevent any radial distension of the tube, J, it is evident that the moulding is caused to embrace said margins in the most uniform and secure manner. After the moulding has traversed the entire length of the dash, the sheath can then be retracted, thereby leaving the tube, J, in its proper position upon the dash, the flaring end, L, being either filed off or else disposed of in any other suitable manner. During the progress of the sheath along the top of dash, the moulding is impelled forward by the key, G, and consequently no strain whatever is brought to bear upon the flaring end, L. of the tube. As a considerable degree of force is required to anchor the moulding, J, securely to the leathern margins, it is evident that the driving action of key, G, would have a tendency to buckle said tube; but this defect is obviated by making the channel of the sheath of such capacity as to allow a pretty snug fit of the moulding within it. When a longer moulding is to be applied to a dash, the key, G, is driven out and inserted in another set of notches nearer the rear end of the sheath; or the same results may be effected by causing the moulding to abut against the end of screw, H, the latter being adjusted either out or in, so as to agree with the length of moulding that the sheath is to carry. The width of channel, E, E', may be increased, to receive a moulding of greater diameter, by removing washers or filling, and inserting thicker ones in their place, or by turning the right and left hand screws, where the latter are employed. It is preferred to make the sheath of two pieces, on account of the facility of grooving them; but it is evident the holder may be made of a greater or less number, if desired. (See Figs. 6 and 7.) It is also preferred to have the sheath embrace the moulding as completely as possible, so as to bring the lower edges of the bars, A, B, near the parting, K, and thereby prevent any spreading of the tube at said slot; but, if the tube is sufficiently stiff to prevent such spreading, the sheath need not surround the moulding so completely. This modified form of sheath is shown in Fig. 6. Furthermore, the sheath may be composed of wood lined with a metallic bushing. It is evident that this form of sheath may be advantageously employed for attaching sheet-metal mouldings for bubes to various articles; and I reserve the right to use it for any and every purpose that it is capable of. What I claim as new, and desire to secure by letters patent, is: (1) A sheath for applying metallic mouldings, said sheath being furnished with a stop for advancing the moulding, all substantially as and for the purpose specified. (2) The within-described sheath for applying metallic mouldings, said sheath being furnished with recesses, f', g', and a key, G, or their equivalent stops, as and for the purposes explained. (3) A sheath composed of two grooved bars, A, E, B, E', bolts or screws, C, and washers, D, whereby the sheath is rendered capable of adjustment to contain mouldings of different diameters, as herein set forth. (4) The combination of bars, A, E, B, E', and guttered hook or shackle, F f, for the object stated.' Infringement is alleged of claims 1, 2, and 3. The defenses insisted upon are want of invention, want of novelty, and non-infringement of claim 3. The substance of the invention set forth in the specification is the use of a sheath or holder or receiver having in it a longitudinal groove or channel, in which is placed the moulding that is to be applied to the upper edge of the dash-board, the sheath or holder, when pulled, drawing with it the moulding over the upper edge of the dash-board, and the key or stop being fitted within the sheath or holder, to prevent the moulding from slipping through the groove. One useful effect of the sheath is to support the moulding laterally, and prevent it from bending or buckling, or injuring the dash-board. Claim 1 covers the use of a sheath furnished with a stop, which operates to prevent the further advancing of the moulding when it reaches the stop. Claim 2 covers the use of a sheath with a stop formed by means of notches or recesses, and a detachable key to be inserted in the notches. Claim 3 covers a sheath composed of two grooved bars, parallel to each other, and having bolts or screws connecting them, and washers between them, so as to render the apparatus capable of being adjusted to contain mouldings of different diameters. The circuit court entered a decree dismissing the bill, from which the plaintiff has appealed. The opinion of that court, reported in 21 Fed. Rep. 319, says in regard to claims 1 and 2: 'The respondents' evidence establishes that, as early as September, 1867, Joseph P. Noyes, a manufacturer of combs at Binghamton, New York, used a machine for putting mouldings on combs, in which the moulding was held in a sheath fitting it closely, and having an extension enough smaller to fit the comb. In this extension there was a sliding follower fitted to abut against the end of the comb. At the extreme opposite end of the larger part of the sheath there was a slot across the sheath, containing a key or stop to prevent the sliding of the moulding. The follower was attached to a slide and lever, so that when a moulding was laid in the larger part of the sheath, and the comb in the smaller part, the comb, being prevented from bending by the walls of the sheath, could be forced into the moulding by the action of the slide and lever upon the follower, the moulding being prevented from bending by the walls of the part of the sheath within which it was placed. This machine was in use more than three years before the date of the complainant's invention. That this was a comparatively small machine, and used only for applying mouldings to combs, is not material. Planing-Machine v. Keith, 101 U. S. 490. Nor is it material that the groove or gutter was so open in cross-section that the moulding could be dropped into it. Fig. 6 of the drawings accompanying the letters patent issued to complainant shows a sheath of like shape, and is referred to in the specifications as a modified form of the sheath patented, and the claim is so broad as to cover any sheath, of any material, shape, or size, for applying mouldings to any article. There is nothing more in the sheath patented to the complainant than an adaptation of the sheath used at Binghamton to the application of mouldings to carriage dash-boards—an adaptation which would have occurred to a skilled mechanic without the exercise of the inventive faculty. Had the complainant's invention been first in time and patented, the Binghamton sheath would have been an infringement; and, conversely, had the Binghamton sheath been patented, the complainant's would have been an infringement. That which infringes, if later, would anticipate, if earlier.' We concur in these views. The affirmative evidence on the part of the defendant in regard to the Noyes apparatus consists of the testimony of Noyes and Yingling, their testimony having been taken in August, 1882. Noyes testified that he had been engaged in making combs, at Binghamton, Broome county, N. Y., since 1860, and had, since 1864, made combs with metallic mouldings for stiffening the backs. He produced one of such combs, marked 'A,' and one of such mouldings, marked 'B.' He further testified as follows: 'Question 6. State whether or not you have ever used any machinery for putting these mouldings on combs. Answer. I have. Q. 7. Can you describe any of the machines used by you for putting mouldings on combs? A. Yes. I have one machine in which the moulding is held in a groove, which fits it closely, and the same groove has an extension enough smaller to fit the comb closely, and in this extension there slides a follower, which is fitted abut against the end of the comb. At the extreme opposite end of the larger part of the groove there is a slot across the groove, containing a key or stop to prevent the moulding sliding through the groove. The follower before mentioned is attached to a suitable slide and lever, so that when a moulding is laid in the larger part of the groove, and the comb in the smaller part, the comb, being prevented from bending by the walls of the groove, can be forced tightly into the moulding by the action of the follower and its connected parts, the moulding being at the same time prevented from bending by the walls of the larger part of the groove. Q. 8. Can you produce a drawing illustrating the machine above described, and its operation? A. I here produce a drawing which illustrates said machine. In this drawing, Fig. 1, A, represents the main body of the machine. In the part A is the groove, C, and its smaller extension, D, in which are placed the moulding and the comb, as described in my previous answer. O represents the slot in which is placed the key, marked 'Fig. 2.' E, Fig. 1, represents the follower, B, the slide of which the follower forms a part; L, K, M, and H, the lever and connecting parts by which E and B are operated. Fig. 3 shows an end view of the slide and follower. Q. 9. Into which of the grooves do you place the metallic moulding? A. Into the groove, C. Q. 10. And into which the comb? A. Into the groove, D. Q. 11. In use, the key or stop, Fig. 2, is placed in the slot, O, to prevent the metallic moulding sliding, is it not? A. It is. Q. 12. State qhether the groove, C, in the sheath, A, effectually prevents the metallic moulding from bending as it is forced over the back of the comb. A. It does. Q. 13. State how long you have used the above-described machine for putting metallic mouldings on combs in the manner described. A. Since September, 1867. Q. 14. Can you fix the date by any positive evidence besides your memory? A. I can; I have referred to the time-book of the men who made the machines, and find the machine to have been finished at the date named, and remember that it was put into immediate use. Q. 15. Has it been used ever since? A. It has been in continued use ever since, without any alteration. q. 16. Have you ever made any effort to keep its use a secret, or has it always been open to the inspection of any person who might come into your shop? A. I have made no effort to keep it secret, but the shop has always been open to visitors, and any one could see the machine who cared to look at it.' The drawing so produced, marked 'C,' shows a machine substantially like that of the plaintiff. Yingling testified that he was, at the time of testifying, in the employ of Noyes, and since 1868, or for about 14 years, had used a machine like that shown by the drawing C, above referred to, for putting metallic mouldings upon combs. Noyes had stated, on cross-examination, in answer to a question as to who made the machine he had described as made in 1867, that William Knopp and his son were in his (Noyes') employ as machinists at that time, and worked some on it; that his time-book, kept at that time, which he had consulted, contained a record of the fact that Knopp and his son so worked on the machine; and that the machine was built during the first week in September, 1867. In rebuttal, the first week in September, 1867. In rebuttal, Knopp and three persons named Newman, Coyle, and McAuley. Knopp testified that he was employed in Noyes's comb factory from 1865 to 1869, and was familiar with the kind of machinery manufactured by them during that time for use in their comb factory. He then proceeded: 'Question 5. In September, 1867, or at any other time, did you make machinery for putting metallic backs on combs? Answer. I did. Q. 6. Without going into detail as to the kind yoy did make, I will ask you whether, in September, 1867, a you made, or helped to make, a machine for putting mouldings on the backs of combs, where the moulding is held in a groove which fits it closely, and the same groove has an extension enough smaller to fit the comb closely, and in this extension there slides a 'follower,' which is fitted to abut against the end of the comb. At the extreme opposite end of the groove there is a slot across the groove, containing a key, or stop, to prevent the moulding from sliding through the groove. The follower is attached to a suitable slide or lever, so that, when a moulding is laid in the larger part of the groove, and the comb in the smaller part, the comb is prevented from bending by the walls of the groove, and can be forced tightly into the moulding, by the action of the follower and of the connecting parts. A. I do not remember that I made anything of that kind. Q. 7. Did you at any other time make such a machine? A. I don't remember that I did. Q. 8. Please examine the comb I now hand you, and state whether Noyes Bros. & Co., at that time when you worked for them, and since, manufactured a comb with metallic back similar to this one, and, if so, state how said matallic back was put on the comb? [Comb marked 'Exhibit A' shown witness, and offered in evidence by solicitor for complainant.] A. They manufactured a comb in general appearance similar. The metallic back was put on and fastened to the comb by Sum. 251, 256; 'If the new citizenship is vice to make it fit in a groove in the comb tightly. The moulding was placed on the comb by hand, and then put in a vice, and the moulding pressed up tightly against the compression. The back was compressed in a or making machinery for compressing the moulding on the comb, as above described? A. I do. Q. 10. Is the mode above described the only way Noyes Bros. & Co. put metallic mouldings on that kind of a comb? A. It is. Q. 11. You were familiar at that time with the mode employed by them for putting mouldings on combs, were you? A. I was.' This testimony of Knopp is very inconclusive. He merely testifies, 13 years after he had left Noyes's establishment, that he does not remember that he made, 15 years before the time when he was testifying, a machine like that described in question 6, put to him. The drawing produced by Noyes was not shown to Knopp. The testimony of Newman, Coyle, and McAuley amounts to nothing. Although they were employed in the comb factory of Noyes at the time they gave their testimony, in December, 1882, and had been employed their, Newman from 1862, Coyle for 14 or 15 years, and McAuley for about 30 years, neither of them was shown the comb, A, nor the moulding, B, nor the drawing, C, above mentioned, nor was a distinct question put to either of them as to the use of a machine like that described in question 6 put to the witness Knopp. The only difference between Noyes' device and that of the plaintiff is that in Noyes' the stop holds the moulding stationary, while the comb is forced into the moulding by the action of the follower. But its action is substantially the same as that of the stop in the plaintiff's patent, which prevents the moulding from slipping through the groove. The case falls within the principle applied in Railroad Co. v. Truck Co., 110 U. S. 490, 4 Sup. Ct. Rep. 220, and cases there cited. As to the third claim, it is not infringed, because, in the defendant's apparatus, no washers are used for adjustment. The decree of the circuit court is affirmed.
130.US.396	Courts decline to enforce contracts which impose a restraint, though only partial, upon business of such character, that restraint to any extent will be prejudicial to the public interest. But where the public welfare is not involved and the restraint upon one, party is not greater than protection to the other party-requires, a contract in restraint of trade may be sustained. A corporation cannot disable itself by contract from the performance of public duties which it has undertaken, and thereby make public accommodation or convenience subservient to its private interests. Where particular contracts are inhibited by statute, and if attempted, are in positive terms declared " utterly null and void," such contracts vill not be enforced. Recovery cannot be had for services rendered, or losses incurred, In securing the execution of an illegal agreement, by a party privy to the unlawful design.	The plaintiff sought to recover compensation for services alleged to have been rendered by him to the defendant in securing the contract in question between the defendant and the Equitable Gas-Light Company of Baltimore. It is objected that the court erred in giving the instruction that the plaintiff was not entitled to recover, because it assumed a material fact in dispute, which should have been left to the jury, namely, that it was 'for the procuring of the making' of the contract offered in evidence that compensation was claimed. The record does not show that this objection to the instruction was taken in the court below, nor does it contain any evidence tending to establish that the plaintiff claimed compensation for anything else than for services in bringing about the agreement. Plaintiff's bill of particulars is for services 'in negotiating and consummating an arrangement and settlement of differences' between the two gas companies; and he put the contract in evidence, and adduced proof that he carried on negotiations, which 'resulted finally' in the execution of it. He was general manager of a corporation engaged in the business of 'the owning, improving, leasing, and manipulation of gas property throughout the country,' and, as his company and other gas compaines 'had been materially inconvenienced by the fact that they were required and expected by their customers to sell their gas at the insufficient price at which it was furnished in Baltimore,' he suggested 'that the conflict in Baltimore should, if possible, be brought to an amicable termination,' 'and in consequence thereof' was employed by the Equitable Gas-Light Company 'to bring about a settlement, if possible, with the defendant.' The conflict referred to seems to have been the competition in the making and vending of gas in the city of Baltimore, which it had been the object of the general assembly of Maryland to encourage; and the settlement to which he alludes was embodied in the contract in question, by which competition was to be destroyed, and the object of the general assembly defeated. We do not feel called upon, under such circumstances, to reverse the judgment upon the ground that the court assumed in the instruction a matter of fact which should have been left to the jury to determine. According to the evidence given by the plaintiff, he informed the defendant 'that he was employed and would be paid by the Equitable Gas-Light Company, if he made an arrangement satisfactory to that company, and that, if he should be successful in bringing about a settlement satisfactory to the defendant also, he should expect and claim to be compensated by the defendant likewise.' Since he had thus entered upon the enterprise under a specific agreement with the Equitable Gas-Light Company, it is somewhat difficult to understand upon this record how, in carrying such an express contract out, he could impose the obligation on the defendant to pay him for doing so upon a mere notification that he should expect from it compensation for the services he had expressly agreed to render the other company, because the result might be satisfactory to the defendant,—a result necessarily to be assumed if any contract was arrived at. The defendant could not, in that view, be held to have laid by and accepted services which the plaintiff would otherwise not have been obliged to perform, nor could plaintiff assert that he did perform only upon the expectation of being also paid by the defendant. The hypotheses of fact set up by the plaintiff in the instructions he asked, and which were refused, contain nothing in respect of which testimony tending to support and establish such hypotheses would add to the mere fact of the notification of plaintiff's expectation, and the evidence on defendant's part tended to show a denial of any obligation to pay. But, apart from this, the real question submitted to us for decision is whether, even if there were no other objection to plaintiff's recovery, such recovery could be allowed in view of the nature of the alleged services. In Irwin v. Williar, 110 U. S. 499, 510, 4 Sup. Ct. Rep. 160, it was held that where a contract, void on account of the illegal intent of the principal parties to it, had been negotiated by a person ignorant of such intent, and innocent of any violation of law, the latter might have a meritorious ground for the recovery of compensation for services and advances, but when such agent 'is privy to the unlawful design of the parties, and brings them together for the very purpose of entering into an illegal agreement, he is particeps criminis, and cannot recover for services rendered or losses incurred by himself on behalf of either in forwarding the transaction.' It is clear from the evidence adduced by the plaintiff that he falls within the category last described; and he makes profert of the fact that the first suggestion in the line of manipulating the gas interests of Baltimore came from himself. Hence, if the contract he brought about was forbidden by statute, or by public policy, it is evident that he could not recover, and the judgment must be affirmed. By this contract it is recited that active competition between the two companies had resulted in expense, annoyance, and loss of profits, and it was therefore provided that the price of gas to consumers should be placed at $1.75 per thousand cubic feet, with a rebate of fifteen cents a thousand feet for payment within seven days, 'unless the rate shall be changed by mutual agreement of the parties hereto in writing;' but, as the defendant had much the larger interest, it might, in case of competition on the part of any other gas company, reduce the rate at which gas should be sold 'by either or both of the parties hereto, from time to time, so long as such competition shall continue,' provided it should not be put at less than one dollar per thousand feet without the written consent of both parties; that the entire net receipts from the sale of gas should be pooled and divided between the companies in a fixed ratio, without regard to the amount of gas actually supplied by either; that one of the companies should lay no more pipes or mains for the supply of gas in the city; that all future pipes or mains should be laid by, and remain the property of, the other company; and that either party which violated any of the covenants in the contract should pay to the other the sum of $250,000 as liquidated damages. It will be perceived that this was an agreement for the abandonment by one of the companies of the discharge of its duties to the public, and that the price of gas as fixed thereby should not be changed, except that, in case of competition, the rate might be lowered by one, but not below a certain specified rate, without the consent of the other. And in the case in hand the Equitable Gas-Light Company was expressly forbidden to enter into such a contract. That company was incorporated by an act of the general assembly of Maryland, passed March 6, 1867, with a capital of $2,000,000, which might be increased to $3,000,000, and with authority to lay pipes along and under the streets, squares, lanes, and alleys of the city of Baltimore, and to supply with light any dwelling-house or other buildings or places whatever belonging to individuals or corporations, adjacent to any such street, square, lane, or alley, and with 'all the rights and privileges granted to the Gas-Light Company of Baltimore by the second, third, fourth, and fifth sections of the ordinance of the mayor and city council of Baltimore, entitled 'An ordinance to provide for more effectually lighting the streets, squares, lanes, and alleys of the city of Baltimore,' approved June 17, 1816, and the act of assembly of December session, 1816, c. 251, so far as the same are not inconsistent with the provisions of this act; and the said company hereby incorporated shall be liable to all the duties, restrictions, and penalties [provided] for in said sections of said ordinance and in said act of assembly.' Laws Md. 1867, pp. 207, 211, 212. Reference to the act and ordinance of 1816 (Laws Md. 1813-1817, c. 251, of 1816; Ordinances, Baltimore, 1813-1822, p. 95) does not contribute to the argument here save as indicating the design of the general assembly to give equal powers to a competing company. Said act of March 6, 1867, § 14, further provided that 'the general assembly hereby reserves the right to alter, amend, or repeal this act at pleasure.' Laws Md. 1867, pp. 207, 214. On the 3d of May, 1882, an act supplementary to the act incorporating the Equitable Gas-Light Company of Baltimore City was approved, (Laws Md. 1882, pp. 550, 551,) authorizing and empowering said company to manufacture and sell gas in Baltimore county as well as in Baltimore city, and to exercise all the powers and rights conferred upon it by the acts of assembly and any amendments thereto, including the right to lay all necessary and convenient pipes, etc., in the county as well as in the city, and the fourth section of this act was as follows: 'That the said company be, and hereby is, prohibited from entering into any consolidation, combination, or contract with any other gas company whatever; and any attempt to do so, or to make such combinations or contracts as herein prohibited, shall be utterly null and void.' In Greenwood v. Freight Co., 105 U. S. 13, the right to repeal the charter of a street-railroad company was sustained under a provision of the General Statutes of Massachusetts declaring 'every act of incorporation passed after the 11th day of March in the year 1831 shall be subject to amendment, alteration, or repeal at the pleasure of the legislature.' In Close v. Cemetery, 107 U. S. 466, 476, 2 Sup. Ct. Rep. 267, it was said that 'a power reserved to the legislature to alter, amend, or repeal a charter authorizes it to make any alteration or amendment of a charter granted subject to it, which will not defeat or substantially impair the object of the grant, or any rights vested under it, and which the legislature may deem necessary to secure either that object or any public right.' Similar views were expressed in Water-Works v. Schottler, 110 U. S. 347, 4 Sup. Ct. Rep. 48; County of Callaway v. Foster, 93 U. S. 567; and other cases. The consent of the corporation was not required to the operation of such a provision as that embodied in the fourth section of the act of 1882, but, if acceptance were necessary, the exercise of corporate action by this gas company after the passage of the amendment was sufficient evidence of such acceptance. The supplying of illuminating gas is a business of a public nature to meet a public necessity. It is not a business like that of an ordinary corporation engaged in the manufacture of articles that may be furnished by individual effort. Gas-Light Co. v. Manufacturing Co., 115 U. S. 650, 6 Sup. Ct. Rep. 252; Gas Co. v. Gas-Light Co., 115 U. S. 683, 6 Sup. Ct. Rep. 265; Shepard v. Gas-Light Col, 6 Wis. 539; Coke Co. v. Coke Co., 121 Ill. 530, 13 N. E. Rep. 169; St. Louis v. Gas-Light Co., 70 Mo. 69. Hence, while it is justly urged that those rules which say that a given contract is against public policy, should not be arbitrarily extended so as to interfere with the freedom of contract, (Printing Co. v. Sampson, L. R. 19 Eq. 462,) yet, in the instance of business of such character that it presumably cannot be restrained to any extent whatever without prejudice to the public interest, courts decline to enforce or sustain contracts imposing such restraint, however partial, because in contravention of public policy. This subject is much considered, and the authorities cited in Transportation Co. v. Pipe Line Co., 22 W. Va. 600; Coke Co. v. Coke Co., 121 Ill. 530, 13 N. E. Rep. 169; Telegraph Co. v. Telegraph Co., 65 Ga. 160. The decision in Mitchel v. Reynolds, 1 P. Wms. 181, 1 Smith, Lead. Cas. pt. 2, p. 508, is the foundation of the rule in relation to the invalidity of contracts in restraint of trade; but as it was made under a condition of things, and a state of society, different from those which now prevail, the rule laid down is not regarded as inflexible, and has been considerably modified. Public welfare is first considered, and, if it be not involved, and the restraint upon one party is not greater than protection to the other party requires, the contract may be sustained. The question is whether, under the particular circumstances of the case and the nature of the particular contract involved in it, the contract is or is not unreasonable. Rousillon v. Rousillon, L. R. 14 Ch. Div. 351; Cloth Co. v. Lorsont, L. R. 9 Eq. 345. 'Cases must be judged according to their circumstances,' remarked Mr. Justice BRADLEY in Navigation Co. v. Winsor, 20 Wall. 64, 68, 'and can only be rightly judged when the reason and grounds of the rule are carefully considered. There are two principal grounds on which the doctrine is founded that a contract in restraint of trade is void as against public policy. One is the injury to the public by being deprived of the restricted party's industry; the other is the injury to the party himself by being precluded from pursuing his occupation, and thus being prevented from supporting himself and his family. It is evident that both these evils occur when the contract is general, not to pursue one's trade at all, or not to pursue it in the entire realm or country. The country suffers the loss in both cases; and the party is deprived of his occupation, or is obliged to expatriate himself in order to follow it. A contract that is open to such grave objection is clearly against public policy. But if neither of these evils ensue, and if the contract is founded on a valid consideration and a reasonable ground of benefit to the other party, it is free from objection and may be enforced.' Innumerable cases, however, might be cited to sustain the proposition that combinations among those engaged in business impressed with a public or quasi public character, which are manifestly prejudicial to the public interest, cannot be upheld. The law 'cannot recognize as valid any undertaking to do what fundamental doctrine or legal rule directly forbids. Nor can it give effect to any agreement the making whereof was an act violating law. So that, in short, all stipulations to overturn, or in evasion of, what the law has established; all promises interfering with the workings of the machinery of the government in any of its departments, or obstructing its officers in their official acts, or corrupting them; all detrimental to the public order and public good, in such manner and degree as the decisions of the courts have defined; all made to promote what a statute has declared to be wrong,—are void.' Bish. Cont. § 549; Iron Co. v. Extension Co., ante, 402, (decided at this term, opinion by Mr. Justice FIELD;) Trist v. Child, 21 Wall. 441; Irwin v. Williar, 110 U. S. 499, 4 Sup. Ct. Rep. 160; Arnot v. Coal Co., 68 N. Y. 558; Salt Co. v. Guthrie, 35 Ohio St. 666; Woodruff v. Berry, 40 Ark. 261; Railroad Co. v. Railroad Co., 3 Rob. (N. Y.) 411; Craft v. McConoughy, 79 Ill. 346; Hooker v. Vandewater, 4 Denio, 349; Stanton v. Allen, 5 Denio, 434; Railroad Co. v. Collins, 40 Ga. 582; Coal Co. v. Coal Co., 68 Pa. St. 173. It is also too well settled to admit of doubt that a corporation cannot disable itself by contract from performing the public duties which it has undertaken, and by agreement compel itself to make public accommodation or convenience subservient to its private interests. 'Where,' says Mr. Justice MILLER, delivering the opinion of the court in Thomas v. Railroad Co., 101 U. S. 71, 83, 'a corporating, like a railroad company, has granted to it by charter a franchise intended in large measure to be exercised for the public good, the due performance of those functions being the consideration of the public grant, any contract which disables the corporation from performing those functions, which undertakes without the consent of the state to transfer to others the rights and powers conferred by the charter, and to relieve the grantees of the burden which it imposes, is a violation of the contract with the state, and is void as against public policy.' These gas companies entered the streets of Baltimore, under their charters, in the exercise of the equivalent of the power of eminent domain, and are to be held as having assumed an obligation to fulfill the public purposes to subserve which they were incorporated. At common law, corporations formed merely for the pecuniary benefit of their shareholders could, by a vote of the majority thereof, part with their property, and wind up their business; but corporations to which privileges are granted in order to enable them to accommodate the public, and in the proper discharge of whose duties the public are interested, do not come within the rule. But we are not concerned here with the question when, if ever, a corporation can cease to operate without forfeiture of its franchises, upon the excuse that it cannot go forward because of expense and want of remuneration. There is no evidence in this record of any such state of case, and, on the contrary, it appears that the cost of the manufacture of gas was largely below the price to be charged named in the stipulation between the parties. There is nothing upon which to rest the suggestion that the companies were unable to serve the consumers, while the record shows, on the other hand, that they simply desired to make larger profits on whatever gas they might furnish. Nor are we called upon to pass upon the validity, generally, of pooling agreements. Here the contract was directly in the teeth of the statute, which expressly forbade the Equitable Gas-Light Company from entering into it. That prohibition declared the policy of the state, as well as restrained the particular corporation. The distinction between malum in se and malum prohibitum right where there can be no legal remedy, and there can be no legal remedy for that which is itself illegal,' (Bank v. Owens, 2 Pet. 527, 539,) it is clear that contracts in direct violation of statutes expressly forbidding their execution cannot be enforced. The question is not one involving want of authority to contract on account of irregularity of organization, or lack of an affirmative grant of power in the charter of a corporation, but a question of the absolute want of power to do that which is inhibited by statute, and, if attempted, is in positive terms declared 'utterly null and void.' 'The rule of law,' said PARKER, C. J., in Russell v. DeGrand, 15 Mass. 35, 39, 'is of universal operation, that none shall, by the aid of a court of justice, obtain the fruits of an unlawful bargain.' We cannot assist the plaintiff to get payment for efforts to accomplish what the law declared should not be done, and the judgment must be affirmed.
132.US.460	Ordinary headless hair-pins, made of steel wire and non wire, when imported into the United States, are subject to a duty of 45 per cent as "manufactures, articles or wares, not specially enumerated or provided for," "composed wholly or in part of iron, steel, copper," etc., and not as "pins, solid-head, or other."	The articles in question were ordinary, headless hair-pins, made of steel wire and iron wire, and the question is whether they were dutiable as 'pins, solid head or other.' By section 13 of the act of July 14, 1862, (12 St. 555-557,) a duty of 5 per centum ad valorem, in addition to then existing duties, was levied on many articles, including 'pins, solid head or other,' and 'manufactures, articles, vessels, and wares, not otherwise provided for, of gold, silver, copper, brass, iron, steel, lead, pewter, tin, or other metal, or of which either of these metals, or any other metal, shall be the component material of chief value.' By section 21 of the act of July 14, 1870, (16 St. 264,) a duty of 50 per centum ad valorem, was levied 'on hair-pins made of iron wire.' Under section 2504, tit. 33, Rev. St. 1878, Schedule M, 'Sundries,' we find, 'Hairpins, made of iron wire, fifty per centum ad valorem;' 'Pins, solid head or other, thirty-five per centum ad valorem.' (Ed. 1878, pp. 476, 480.) And in Schedule E, 'Metals,' (465:) 'All manufactures of steel, or of which steel shall be a component part, not otherwise provided for, forty-five per centum ad valorem. But all articles of steel partially manufactured, or of which steel shall be a component part, not otherwise provided for, shall pay the same rate of duty as if wholly manufactured.' And also, (467:) 'Manufactures, articles, vessels, and wares not otherwise provided for, of * * * iron * * * or other metal, except * * * steel, or of which either of these metals shall be the component material of chief value, thirty-five per centum ad valorem.' In March, 1875, certain imported steel hair-pins having been held at the port of New York dutiable at 50 per cent. ad valorem, because of their similarity to iron wire hair-pins, the treasury department decided that this was erroneous, and that they were properly chargeable with the rate of duty applicable to manufactures of steel not otherwise provided for. Syn. Ser. 1875, p. 56, No. 2140. By section 2502, tit. 33, Rev. St., as enacted by the act of March 3, 1883, (22 St. 501,) Schedule C, 'Metals,' a duty of 30 per centum ad valorem was levied on 'pins, solid head or other,' and by the last paragraph in the same schedule, on 'manufactures, articles, or wares, not specially enumerated or provided for in this act, composed wholly or in part of iron, steel, * * * or any other metal, and whether partly or wholly manufactured, forty-five per centum ad valorem.' It will be perceived that, although hair-pins re not mentioned eo nomine, this last paragraph covers iron and steel hair-pins, as was ruled as to the latter by the department in 1875, in the construction and application of similar language. Inasmuch as congress, for the 13 years prior to 1883, treated hair-pins, for revenue purposes, as a distinct article from 'pins, solid head or other,' we consider it unreasonable to conclude that the legislation of 1883 was intended to do away with a distinction manifestly regarded as inherent in the thing itself. In short, it is doubtful if it could ever have been properly held that hair-pins were ejusdem generis with the pins referred to in the tariff acts; but, if this could have been so prior to 1870, we are of opinion that at that time congress assigned them to a class by themselves, because essentially sui generis, and, therefore, that their not being specifically enumerated in 1883 did not relegate them to the category of 'pins, solid head or other,' as ingeniously argued by counsel. From these views the conclusion follows that the court below should have instructed the jury to find for the defendant. The judgment is reversed, and the cause remanded, with a direction to award a new trial.
131.US.267	The courts of the United States have power to punish, by fine or imprisonment, at their discretion, misbehavior in their presence, or misbehavior so* near thereto as to obstruct the administration of justice, although the offence is also punishable by indictment under Rev. Stat. § 5399. Attempting to deter a witness, in attendance upon a court of the United States in obedience to a subpoena, and while he is near the court room, in the jury-room temporarily used as witness-room, from testifying for the party in whose behalf he was summoned, and offering him, when in the hallway of the court, money not to testify against the defendant, is misbehavior in the presence of the court. Within the meaning of § 725, the court, at least when in session, is present in every part of the place set apart for its own use, and for the use of its officers, jurors and witnesses; and misbehavior anywhere in such place is misbehavior in the presence of the court. Although the word "summary," as used in the first section of the act of March 3, 1831, (4 Stat. 487, c. 99,) was omitted from the present revision of the statutes, the courts of the United States have the power to punish by fine or imprisonment, at their discretion, contempts of their authority, in the cases defined in § 725. In proceeding against a party for contempt, the court is not bound to require service of interrogatories upon the appellant to afford him an opportunity to purge himself of contempt in answering, but may, in its discretion, adopt such mode of determining the question as it deems proper, having due regard to the essential rules that prevail in the trial of matters of contempt. THE case, as stated by the court in its opinion, was as follows:	The power of the courts of the United States to punish contempts of their authority is not merely incidental to their general power to exercise judicial functions, but, as was said in Ex parte Terry, 128 U. S. 289, 304, ante, 77, where this subject was considered, is expressly recognized and the cases in which it may be exercised are defined, by acts of congress. The judiciary act of September 24, 1789, (chapter 20 § 17,) invests them with 'power to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same.' 1 St. 83. By an act of congress of March 2, 1831, c. 99, 'declaratory of the law concerning contempts of court,' (4 St. 487,) it was enacted: 'That the power of the several courts of the United States to issue attachments and inflict summary punishments for contempts of court shall not be construed to extend to any cases except the misbehavior of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of the said courts in their official transactions, and the disobedience or resistance by any officer of the said courts, party, juror, witness, or any other person or persons, to any lawful writ, process, order, rule, decree, or command of the said courts. Sec. 2. That if any person or persons shall corruptly, or by threats or force, endeavor to influence, intimidate, or impede any juror, witness, or officer, in any court of the United States, in the discharge of his duty, or shall, corruptly, or by threats or force, obstruct or impede, or endeavor to obstruct or impede, the due administration of justice therein, every person or persons so offending, shall be liable to prosecution therefor, by indictment, and shall, on conviction thereof, be punished by fine not exceeding five hundred dollars, or by imprisonment not exceeding three months, or both, according to the nature and aggravation of the offense.' Section 725, Rev. St. tit. 'The Judiciary,' is in these words: 'The said courts shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: provided, that such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of the said courts.' The second section of the act of 1831 is in part reproduced in section 5399, Rev. St. tit. 'Crimes.' That section is as follows: 'Every person who corruptly, or by threats or force, endeavors to influence, intimidate, or impede any witness, or officer in any court of the United States, in the discharge of his duty, or corruptly, or by threats or force, obstructs or impedes, or endeavors to obstruct or impede, the due administration of justice therein, shall be punished by a fine of not more than five hundred dollars, or by imprisonment not more than three months, or both.' It is contended that the substance of the charge against the appellant is that he endeavored, by forbidden means, to influence or 'impede' a witness in the district court from testifying in a cause pending therein, and to obstruct or impede the due administration of justice, which offense is embraced by section 5399, and it is argued, is punishable only by indictment. Undoubtedly, the offense charged is embraced by that section, and is punishable by indictment. But the statute does not make that mode exclusive, if the offense is committed under such circumstances as to bring it within the power of the court under section 725; when, for instance, the offender is guilty of misbehavior in its presence, or misbehavior so near thereto as to obstruct the administration of justice. The act of 1789 did not define what were contempts of the authority of the courts of the United States in any cause or hearing before them, nor did it prescribe any special procedure for determining a matter of contempt. Under that statute the question whether particular acts constituted a contempt, as well as the mode of proceeding against the o fender, was left to be determined according to such established rules and principles of the common law as were applicable to our situation. The act of 1831, however, materially modified that of 1789, in that it restricted the power of the courts to inflict summary punishments for contempt to certain specified cases, among which was misbehavior in the presence of the court, or misbehavior so near thereto as to obstruct the administration of justice. Ex parte Robinson, 19 Wall. 505, 511. And although the word 'summary' was, for some reason, not repeated in the present revision, which invests the courts of the United States with power 'to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority' in certain cases defined in section 725, we do not doubt that the power to proceed summarily for contempt in those cases remains, as under the act of 1831, with those courts. It was, in effect, so adjudged in Ex parte Terry, above cited. The question then arises whether the facts recited in the final order in the district court as constituting the contempt which facts must be taken in this collateral proceeding to be true make a case of misbehavior in the presence of that court, or misbehavior so near thereto as to obstruct the administration of justice therein. There may be misbehavior in the presence of a court amounting to contempt that would not, ordinarily, be said to obstruct the administration of justice. So there may be misbehavior, not in the immediate presence of the court, but outside of and in the vicinity of the building in which the court is held, which, on account of its disorderly character, would actually interrupt the court, being in session, in the conduct of its business, and consequently obstruct the administration of justice. Flores, we have seen, was in attendance upon the court, in obedience to a subpoena commanding him to appear as a witness in behalf of one of the parties to a case then being tried. While he was so in attendance, and when in the jury-room, temporarily used as a witness-room, the appellant endeavored to deter him from testifying in favor of the government, in whose behalf he had been summoned; and, on the same occasion, and while the witness was in the hallway of the courtroom, the appellant offered him money not to testify against Goujon, the defendant in that case. Was not this such misbehavior upon the part of the appellant as made him liable, under section 725, to fine or imprisonment, at the discretion of the court? This question cannot reasonably receive any other than an affirmative answer. The jury-room and hallway where the misbehavior occurred, were parts of the place in which the court was required by law to hold its sessions. It was held in Heard v. Pierce, 8 Cush. 338, 341, that 'the grand jury, like the petit jury, is an appendage of the court, acting under the authority of the court, and the witnesses summoned before them are amenable to the court, precisely as the witnesses testifying before the petit jury are amenable to the court.' Bacon, in his Essay on Judicature, says: 'The place of justice is an hallowed place; and therefore not only the bench, but the foot-pace and precincts and purprise thereof, ought to be preserved without scandal and corruption.' We are of opinion that, within the meaning of the statute, the court, at least when in session, is present in every part of the place set apart for its own use, and for the use of its officers, jurors, and witnesses: and misbehavior anywhere in such place is misbehavior in the presence of the court. It is true that the mode of proceeding for contempt is not the same in every case of such misbehavior. Where the contempt is committed directly under the eye or within the view of the court, it may proceed 'upon its own knowledge of the facts, and punish the offender, without further proof and without issue or trial in any form,' (Ex parte Terry, 128 U. S. 289, 309, ante, 77;) whereas, in cases of misbehavior of which he judge cannot have such personal knowledge, and is informed thereof only by the confession of the party, or by the testimony under oath of others, the proper practice is, by rule or other process, to require the offender to appear and show cause why he should not be punished. 4 Bl. Comm. 286. But this difference in procedure does not affect the question as to whether particular acts do not, within the meaning of the statute, constitute misbehavior in the presence of the court. If, while Flores was in the court-room, waiting to be called as a witness, the appellant had attempted to deter him from testifying on behalf of the government, or had there offered him money not to testify against Goujon, it could not be doubted that he would have been guilty of misbehavior in the presence of the court, although the judge might not have been personally cognizant at the time of what occurred. But if such attempt and offer occurred in the hallway just outside of the court-room, or in the witness-room, where Flores was waiting, in obedience to the subpoena served upon him, or pursuant to the order of the court, to be called into the court-room as a witness, must it be said that such misbehavior was not in the presence of the court? Clearly not. We are of opinion that the conduct of the appellant, as described in the final order of the district court, was misbehavior in its presence, for which he was subject to be punished without indictment, by fine or imprisonment, at its discretion, as provided in section 725, Rev. St. And this view renders it unnecessary to consider whether, as argued, the words 'so near thereto as to obstruct the administration of justice' refer only to cases of misbehavior, outside of the court-room, or in the vicinity of the court building, causing such open or violent disturbance of the quiet and order of the court, while in session, as to actually interrupt the transaction of its business. It is, however, contended that the proceedings in the district court were insufficient to give that court jurisdiction to render judgment. This contention is based mainly upon the refusal of the court to require service of interrogatories upon the appellant, so that, in answering them, he could purge himself of the contempt charged. The court could have adopted that mode of trying the question of contempt, but it was not bound to do so. It could, in its discretion, adopt such mode of determining that question as it deemed proper, provided due regard was had to the essential rules that obtain in the trial of matters of contempt. This principle is illustrated in Randall v. Brigham, 7 Wall. 523, 540, which was an action for damages against the judge of a court of general jurisdiction, who removed the plaintiff from his office as an attorney at law on account of malpractice and gross misconduct in his office. One of his contentions was that the court never acquired jurisdiction to act in his case, because no formal accusation was made against him, nor any statement of the grounds of complaint, nor a formal citation against him to answer them. The court, after observing that the informalities of the notice did not touch the question of jurisdiction, and that the plaintiff understood from the notice received the nature of the charge against him, said: 'He was afforded ample opportunity to explain the transaction and vindicate his conduct. He introduced testimony upon the matter, and was sworn himself. It is not necessary that proceedings against attorneys for malpractice, or any unprofessional conduct, should be founded upon formal allegations against them. 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 should be given to the attorney of the charges made, and opportunity afforded him for explanation and defense. The manner in which the proceedings shall be conducted, so that it be without oppression or unfairness, is a matter of judicial regulation.' So, in the present case, if the appellant was entitled of right to purge himself, under oath, of the contempt, that right was not denied to him; for it appears from the proceedings in the district court, made part of the petition for habeas corpus, not only that he was informed of the nature of the charges against him by the testimony of Flores, taken down by a sworn stenographer at the preliminary examination, but that he was present at the hearing of the contempt, was represented by counsel, testified under oath in his own behalf, and had full opportunity to make his defense. Our conclusion is that the district court had jurisdiction of the subject-matter, and of the person, and that irregularities, if any, occurring in the mere conduct of the case, do not affect the validity of its final order. Its judgment, so far as it involved mere errors, cannot be reviewed in this collateral proceeding, and must be affirmed. It is so ordered.
132.US.207	A complaint in a suit in a District Court in Idaho Territory prayed for an injunction restraining the defendant from interfering with the possession of a mining claim which the plaintiff had, by a written agreement, licensed the defendant to work, for a compensation, the agreement also containing a provision for the conveyance of the claim to the defendant, on certain terms. The complaint also prayed for an accounting concerning all ore taken from the mine by the defendant, and the payment to the plaintiff of the amount due to the plaintiff under the agreement. The defendant filed a cross-complaint praying for a specific performance by the plaintiff of the contract to convey. The District Court, by one judgment, granted to the plaintiff the injunction asked, and ordered an accounting before a referee, and dismissed the cross complaint. On appeal by the defendant the judgment was affirmed by the Supreme Court of the Terntory, and the defendant appealed to this court. Held, (1) The judgment was not final or appealable; (2) It made no difference that the judgment dismissed the cross complaint. (3) The right of the defendant to appeal from the judgment, so far as the cross complaint is concerned, will be preserved, and time will run against him, as to all Darts of the present judgment of the District Court only from the time of the entry of a final judgment after a hearing under the accounting.	This is a suit brought in the district court of the second judicial district of Idaho territoty, in and for the county of Alturas, by George F. Settle and Jacob Reeser against John B. Winters, Frank Ganahl, and John Winkelbach. The complaint alleges that the plaintiffs, being the owners of a mining property, licensed the defendants to work it on the terms and conditions expressed in a written agreement and a supplemental agreement, for a definite period; that, under the agreement, the defendants were to work the mine during that period at their own expense, keep the property free from liens, and pay to the plaintiffs, as a consideration, one-half of the gross proceeds from the mine; that, if the defendants should pay to the plaintiffs, on or before November 27, 1883, the termination of the said period, out of the proceeds of the mine, or otherwise, $40,000, the plaintiffs should convey the property to the defendants; that, in the event of such payment by the defendants to the plaintiffs within the time specified, any and all sums theretofore received by the plaintiffs from the defendants as consideration for the use and working of the mine should be credited upon and deducted from the $40,000; that, if the defendants should fail to comply with any of their agreements, or should not, on or before the day named pay the $40,000 to the plaintiffs, they should forfeit all rights under the agreement, and no longer work the property; that the defendants proceeded to work the mine, and continued, during the period mentioned, to extract large quantities of gold and silver ore from it; that, on the 24th of November, 1883, the agreement was extended, in writing, to December 27, 1883; that the defendants had paid to the plaintiffs only $21,000 out of the $40,000, which sum was realized out of the working of the mine, and was not in excess of the one-half of its gross proceeds; that the defendants were continuing to work the mine, and were insolvent, and, during the 30-days extension of time, had extracted and removed large quantities of ore, for which they had failed to account to the plaintiffs; and that the defendants threatened to continue to extract the ore. The prayer of the complaint is for an injunction restraining the defendants during the pendency of the suit, and also by a final order on the hearing, from entering upon on interfering with the possession of the property, or from extracting or removing from the mine any rock or ore, and for an accounting by the defendants with the plaintiffs concerning all rock or ore taken from the mine by the defendants, and for the payment by them to the plaintiffs of a moiety thereof; and that the amount found to be due to the plaintiffs upon such account be decreed to be a lien upon all rock or ore remaining in the hands of the defendants. After a demurrer to the complaint had been overruled, the defendants put in an answer to it. They also filed a cross-complaint, praying that the plaintiffs might be decreed specifically to execute and perform their contract to convey the property to the defendants, on receiving from them the remainder of the purchase money which might be equitably due therefor, and for an injunction, to be made perpetual on the hearing, restraining the plaintiffs from interfering with the possession by the defendants of the mining claim, and the works and openings leading thereto. This cross-complaint was answered by the plaintiffs, and the case was tried by the court on evidence, oral or documentary, adduced by the respective parties. It made certain findings of fact and conclusions of law, and entered a decree adjudging that the defendants be enjoined perpetually from entering upon or interfering with the possession of the mining claim mentioned in the complaint, and that the plaintiffs were entitled to an accounting with the defendants of and concerning all rock and ore taken from the mine by the defendants during the term mentioned, and not already accounted for, and referring it to a referee to take and state such account. The decree further adjudged that the defendants take nothing by their cross-complaint; that it be dismissed; that they were not entitled to any order restraining the plaintiffs from the enjoyment of the premises, prior to or pending any appeal that might be taken; and that the plaintiffs recover from the defendants their costs. On an appeal by the defendants to the supreme court of the territory from that judgment it was affirmed. The defendants have brought the case here by appeal, and briefs have been filed by both parties on the merits. But we are of opinion that the decree was not a final one, and is not appealable. The judgment of the supreme court simply affirmed the judgment of the district court. As regards the relief sought by the plaintiffs, the latter judgment merely enjoined the defendants, and ordered an accounting by them before a referee concerning the rock and ore taken by them from the mine. The bill prays for such injunction and for such accounting, and for the payment to the plaintiffs of what shall be found due to them upon such accounting. In this respect, the decree is of the same character as that considered by us in Iron Co. v. Martin, ante, 32, (decided November 11, 1889,) where the decree was held not to be final or appealable. Nor does it make any difference that the decree in the present case dismisses the cross-complaint of the defendants. The filing of the cross-complaint was not the institution of a separate suit, but grew out of the original complaint. There was but a single decree, and that was entitled in the original suit. The right of the defendants to appeal from the decree, so far as their cross-complaint is concerned, will be preserved; and time will run against them, as to all parts of the present judgment of the district court, only from the time of the entry of a final decree after a hearing under the accounting which is to be had. Ayers v. Chicago, 101 U. S. 184, 187. Appeal dismissed.
132.US.367	A creditor of an insolvent debtor, having full knowledge of the insolvency, secured for himself a transfer of a large part of the notes, book accounts and debts of the insolvent. Other creditors by a proceeding which was part of the same transaction secured their debts by attachments sufficient to absorb all the property of the debtor. A creditor not included in the arrangement sued the debtor and by garnishee process brought in the creditor who had obtained the notes, etc. Held, (1), that the garnishee was bound to establish, as against the pursuing creditor, that his claim against the debtor was just, and that lie will receive from the assets no more than is reasonably necessary to pay it; and, (2), if he is found liable at all as garnishee, he is liable to account not only for the money collected on the notes, accounts, etc., but also for the value of those which remain in his hands, at least to a sufficient amount to satisfy the debt of the pursuing creditor.	This is a writ of error to the circuit court for the northern district of Texas. Hoffheimer Bros. brought suit in the district court of Dallas county, Tex., for a debt of $11,329.79, against Strauss & Levy, of that place, a firm composed of A. Strauss and J. J. Levy, in which suit they applied for and obtained a writ of garnishment against Frieberg, Klein & Co., who were residents of the same county, and doing business in Dallas. This writ was served upon Frieberg, Klein & Co. through Joseph Seinsheimer, a member of the firm, in the county of Galveston, on the 15th day of August, 1885. The writ required the garnishees to answer upon oath 'what, if any, they were indebted to said Strauss & Levy, and were when this writ was served upon them, and what, if any, effects of said Strauss they have in their possession, and what when the writ was served.' To this they made the following answer on oath: 'Now comes Frieberg, Klein & Co., garnishees herein, and, answering the writ of garnishment heretofore served upon them, say that they are not now indebted to Strauss & Levy, or either of them, and were not when this writ was served; that they have no effects of Strauss & Levy, or either of them, in their possession, and had none when this writ was served; that they know of no person indebted to Strauss & Levy, or either of them, or who have in their possession effects belonging to Strauss & Levy, or either of them.' This answer was controverted by Hoffheimer Bros., who took issue upon it by a plea which alleged that said garnishees 'combined, colluded, and confederated together with said Strauss & Levy for the purpose and with the intent to hinder, delay, and defeat the creditors of said Strauss & Levy in the collection of their debts, and that, in furtherance of said combination, at said time and with the intent aforesaid, said garnishees secretly and covinously procured and received from said Strauss & Levy all the books, accounts, notes, choses in action, and other evidences of indebtedness then owing to said Strauss & Levy by divers and sundry persons to these plaintiffs unknown, but amounting in the aggregate to about the sum of thirty-two thousand dollars; and that said garnishees thereafter immediately commenced to collect said claims, pretending to be owners thereof. These plaintiffs are not informed as to the amount of such claims which had been collected by said garnishees at the time said writs of garnishment were filed herein, but they are informed and believe that at the time the writs of garnishment were served, as well as at the time the said answers were filed, said garnishees had then collected a very large amount upon said claims,—it is believed, more than sufficient to pay off and discharge the claims of these plaintiffs against said Strauss & Levy,—and that the said garnishees then had, and still have, the money so collected, and that said garnishees then had in their possession said claims not so collected by them.' The case was afterwards transferred to the circuit court of the United States, and, the plaintiffs having obtained judgment against Strauss & Levy for the sum of $11,787.15, a trial was had in that court before a jury on the issues made between Hoffheimer Bros. and Frieberg, Klein & Co., garnishees. In that trial the jury returned a verdict in favor of the plaintiffs for the sum of $11,329.79, and the court rendered judgment upon that verdict, and declared that when it should be paid or collected it should constitute a credit for that amount on the judgment in favor of p aintiffs against Strauss & Levy. It is to reverse this judgment that the garnishees, Frieberg, Klein & Co., have brought the present writ of error. The errors assigned relate to the admission of evidence against objections of plaintiffs in error, and to the charge of the court to the jury, and to the refusal to charge as requested by them. A bill of exceptions was taken, which purports to give the proceedings on the trial, and which, while it does not expressly state that it includes all the testimony given in the case, is probably a correct statement of all that was said and done pertinent to the issues now presented. It appears from this bill of exceptions that Strauss & Levy were engaged in Dallas as wholesale dealers in liquors and cigars on the 10th day of August, 1885, and were at that time seriously embarrassed in their business; that Frieberg, Klein & Co. were also wholesale dealers in Galveston, Tex., with a house in Dallas; that Strauss & Levy were indebted to Frieberg, Klein & Co., by notes and accounts, in the probable sum of about $15,000; and that on the 10th day of August aforesaid, just after dinner, Klein was in the office of Strauss & Levy, when Mr. Bradford, a lawyer, came in. He had a paper in his hand, and demanded payment of them of a claim not then due. They said they would pay it when due, and Bradford talked about suing them. Klein says he knew that Bradford was the attorney for the Bradstreet Commercial Agency, and he became alarmed, and demanded payment for the debt due his firm. They told him they had no money; but they had notes and accounts, which they assigned to Frieberg, Klein & Co. in payment of their debt, on his demand. The notes and accounts were assigned to Frieberg, Klein & Co. by a written instrument in which Strauss & Levy assigned and transferred to Frieberg, Klein & Co., in full payment and satisfaction of their indebtedness to that firm of the sum of $15,789, 'all of our accounts mentioned on a sheet attached, marked 'A,' and the notes now held by Frieberg, Klein & Co. as collateral security, besides the notes this day handed Mr. Klein in person, which notes, with aforementioned accounts, amount in the aggregate to the estimated value of $15,000.' This instrument is dated the same day, August the 10th. Mr. Klein states that late on the night of the 10th a Mr. Rhinehart came to his house, and showed him a telegram, and stated that Strauss & Levy were outside, and wanted to know what to do about their business matters. At their solicitation, he went with them to the residence of Mr. L. M. Crawford, a lawyer, after 1 o'clock in the morning of the 11th. Mr. Crawford said that his papers were ready, and he was going to attach. It appears that during that night papers were prepared for attachment in favor of several creditors living in the town of Dallas. Among these attaching creditors were Marx & Kempner, Addie Lowenstein, Oliver & Griggs, and perhaps others. The order in which these attachments should be levied or issued so as to give priority among themselves was determined during these interviews, in all of which Mr. Klein took an active part, directing himself the displacement of this order of priority in one case to the dissatisfaction of Strauss & Levy when they found it out, who thus found some of their own friends, whom they intended to make safe by these attachments, postponed to some others; and it is obvious from the testimony that Klein, and Strauss and Levy, and Crawford, the lawyer, and some of the other parties to those suits, sat down during that night and morning, and arranged for the issuing of attachments sufficient in amount to absorb all the property owned by Strauss & Levy, and that Hoffheimer, and perhaps many other creditors, were left without protection, and without any means of making their debts; so that between the time when Bradford, the lawyer, made his demand that evening, after dinner, and daylight next morning, all the assets of the partnership of Strauss & Levy had been divid d between the parties who met that night, and that not by any assignment, but by a contrivance by which Frieberg, Klein & Co. got the choses in action, whether notes or accounts due to Strauss & Levy, and the visible property was secured to the other persons engaged in the transaction by attachments issued with the consent and active assistance of Strauss & Levy, and apportioned among these different parties in accordance with an arrangement which met the assent of all of them. It will be observed that in the reply of Hoffheimer Bros., by which they took issue on the answers of the garnishees, they state that prior to the service of the writ of garnishment said garnishees combined, colluded, and confederated together with said Strauss & Levy for the purpose and with the intent to delay, defeat, and hinder the creditors of said Strauss & Levy in the collection of their debts; and the question which came before the jury for trial turned upon the truth of this allegation. There is much other testimony in the bill of exceptions showing the interference of Klein, and occasionally of one of his partners, in the proceedings, by which this combination or conspiracy was carried out. Whether it is sufficient to establish it or not it was for the jury to say, if they were properly instructed, and if no improper testimony was admitted. It is obvious that there is sufficient testimony to justify a jury in the inference that Mr. Klein was the presiding genius in the appropriation and distribution of the assets of Strauss & Levy. Before we come to the matters on which the assignments of error are made, it is proper to make one or two things a little more clear than they seem at first sight. The transfer of the notes and accounts of Strauss & Levy to Frieberg, Klein & Co. was not an assignment to secure payment of the debt of the former to the latter, but it purports upon its face to be, and was treated by the parties throughout as, an absolute sale of those notes and accounts in full satisfaction of the debt due by the insolvent firm. The case is not to be treated, therefore, in its subsequent consideration, as one in which Frieberg, Klein & Co. held these notes and accounts as security for their debt, but as one in which they became the owners of them absolutely, if the transaction was fair and honest. Another point to be considered is how far this transfer or assignment of the notes and accounts was a part of the transaction by which the whole property of the insolvent firm of Strauss & Levy was appropriated during the 12 or 15 hours within which the matter was completed. It is earnestly insisted by counsel for plaintiffs in error that the transaction between Klein and Strauss & Levy in the afternoon of the 10th was totally distinct from those which took place that night in regard to the attachments, and that therefore nothing said or done by Strauss or Levy, or by any of the parties, or their agents, whose attachments were levied after the execution of the paper transferring the notes and accounts to Frieberg, Klein & Co., can be used as evidence against the validity of that transfer. If the entire proceedings of that afternoon and night are to be considered as one transaction, intended to distribute the assets of Strauss & Levy to certain creditors to the exclusion of others, then, whatever was said or done by any of those parties in regard to that transaction is evidence against all of them, and the acts of Mr. Klein in furtherance of this combination, though some of them may have occurred after he had obtained the transfer of a part of the assets of Strauss & Levy to himself and partners, must be considered as part of the res gestae. We are of opinion that the short time consumed in the whole transaction, the active interference of Mr. Klein in all its stages, and in securing priority for certain friends of his and of Strauss & Levy in these attachments, and the fact that the whole property of the insolvent debtors was intended to go to certain individuals to the exclusion of others, by consent of the parties engaged, constituted one transaction, in which Mr. Klein's acts and doings were part of the res gestae, and, as such, are admissible evidence. With these principles in view, we approach the assignments of error, the first of which relates to the introduction of testimony objected to by defendants below. The testimony of John W. Edmondson, who was in the employ of Marx & Kempner, one of the firms whose attachments were included in the proceedings we have mentioned, stated that the suit and attachments of Marx & Kempner were filed by the authority of Klein, and that Klein, Strauss, and Levy, and Crawford, the attorney, had told him so. He also said that in September, 1885, he had a conversation with Strauss and Levy, at which Klein and Marx were present. In that conversation Strauss and Levy said they had received from Hoffheimer Bros. on the 10th of August, about 9 or 10 o'clock at night, a telegram which referred to their matters in such a way as to alarm them. That they then went with the telegram to Klein, about 1 o'clock that night, and with Klein to the house of Crawford, the lawyer, and there conferred together. It was then agreed 'between all of them that confidential debts should be attached for as follows: Crawford & Crawford, Marx & Kempner, Wertheim & Schiffer, Oliver & Griggs, and Addie Lowenstein. Crawford & Crawford were to come first, and Marx & Kempner next; but Sam Klein had it fixed so that next day, when the attachments were levied, that of Oliver & Griggs was levied ahead of Marx & Kempner.' 'Some statements were made by Levy that the attachment was agreed on, in which August Cohn, brother-in-law of Levy, was indorser on one of the notes. Levy said that he had taken legal advice, and would knock all the attachments out of court, and give away how the whole thing was done, and let none of the confidential debts be paid a dollar, rather than Cohn should suffer.' There is much more of this, showing the secret arrangements by which the property of the insolvents was to be disposed of as the parties present had determined. Edmondson said that Klein, who was present, concurred in all that Strauss and Levy said. He further testified that Klein had said in that conversation that, in consideration of the agreement of Marx & Kempner to hold August Cohn harmless, they gave Marx & Kempner a note of Cohn indorsed by Strauss & Levy and by Frieberg, Klein & Co. The objection to this testimony seems to be upon the ground that Strauss & Levy, after they had parted with their interests in the property, could not, by their own confessions or statements of the nature of the transaction, defeat the title they had transferred to Frieberg, Klein & Co. But it will be remembered that this conversation was in the presence of Klein, one of the defendants, and that the bill of exceptions states that he concurred in all that was said. It was therefore admissible against him and his partners, as a statement which he agreed to at the time of the conversation, and which he should have contradicted if it were untrue. With regard to the letter attached to Edmondson's deposition as an exhibit, from J. J. Levy to M. Marx, of the firm of Marx & Kempner, it might possibly be admissible, though written August 31st, 20 days after the attachment proceedings, as showing that Levy understood that in those proceedings his friend Cohn was to be taken care of. Otherwise, it is entirely immaterial, and could not have worked the defendants any harm. After the testimony of Edmondson, the deposition of H. Kempner, of the firm of Marx & Kempner, was introduced. He testified to a conversation with Mr. Klein in Galveston on the Sunday morning after the attachment suits had been instituted, in which he said: "Now, Mr. Klein, being that you were the leader and manager for the attachment suits, why is it that you did not carry out the instructions of Strauss & Levy, and put Marx & Kempner second in the order of attachment?' He replied that e felt in honor bound to put Oliver & Griggs ahead of Marx & Kempner, because he had recommended them for accommodation. He said that he had done all that he could for Marx & Kempner; that Strauss had insisted that Addie Lowenstein should be put in as a creditor in attachment for three thousand, but he (Klein) had objected, and it was compromised on the one thousand named in her suit. She is the sister-in-law of Strauss.' As this testimony relates to what Klein himself, one of the defendants, said, and as it tends to show his own recognition of the fact that he had been a controlling spirit in the attachment proceedings, we do not see what objection can be urged to it. Objection is made to the testimony of Chapman Bradford, offered in rebuttal, to the effect that he had seen in the store of Pascal Tucker, in Brownwood, several barrels of whisky marked 'S. &. L., Dallas.' This testimony seems to have been offered in rebuttal of the testimony of Klein, who had declared that Tucker had been bookkeeper for Strauss & Levy, and had afterwards moved to Brownwood, and was keeping a store there; that 'none of Strauss & Levy's goods were shipped to Tucker. He received none of them. I shipped all of them to Frieberg, Klein & Co., at Galveston.' This was his own firm. So far as the testimony of Bradford tended to contradict this statement of Klein, no objection can be seen to its admissibility; and, if neither Klein's testimony nor Brown's testimony is material to the issue, it seems to be so utterly useless that defendants could not be hurt by it. Two principal objections are made to the charge of the court. The first of these, and perhaps the more important, is that the court placed the burden of proof upon the garnishees to establish the fairness of the transaction by which they obtained possession of the notes and accounts of the insolvent debtors. The argument is that the defendants, by virtue of the statute, answered certain interrogatories which had been propounded to them in the garnishee process; that that answer is to be taken as evidence in their favor; and that, as they positively denied having any property or credits of the insolvent debtors in their hands, or being in any way indebted to them, this answer should stand as a prima facie case in their favor, to be overcome by proof on the part of the plaintiffs. It is also true that in the traverse of this answer made by plaintiffs they set out the affirmative allegation that 'prior to the service of the writ of attachment and writ of garnishment the garnishees combined, colluded, and confederated together with said Strauss & Levy for the purpose and with the intent to hinder, delay, and defeat the creditors of said Strauss & Levy in the collection of their debts; and that, in furtherance of said combination, at said time and with the intent aforesaid, said garnishees secretly and covinously procured and received from said Strauss & Levy all the books, accounts, notes, choses in action, and other evidences of indebtedness then owing to said Strauss & Levy by divers and sundry persons to these plaintiffs unknown, but amounting in the aggregate to about the sum of thirty-two thousand dollars; and that said garnishees thereafter immediately commenced to collect said claims, pretending to be owners thereof.' If this allegation is not true in substance, the plaintiffs had no case against Frieberg, Klein & Co., and the burden of the issue was, therefore, primarily upon them. But Klein and another member of that partnership were sworn as witnesses, and what they said as witnesses, being minutely descriptive of what was done, is much more important in ascertaining the truth than their general denial that they held the property of the insolvent debtors, or owed them anything. In the testimony of Klein himself, it was made very clear that he was aware, at the time of the transaction by which he obtained their choses in action, that Strauss & Levy were insolvent, or at least were in failing circumstances, and unable to pay th ir debts; and that he received from them all, or nearly all, of the notes and accounts due them, and professed to take them in payment of the debt of his firm. It was not unreasonable, therefore, that the court should charge that, under these circumstances, Klein and his partners should establish the fairness of the proceeding by which they came into the possession of these notes and accounts. The substance of the charge of the court, of which complaint is made, is that 'if the jury believe from proof in the case that plaintiffs had a valid, existing, unsatisfied claim against Strauss & Levy for something over eleven thousand dollars; and that Strauss & Levy were insolvent on the 10th day of August, 1885, and that Klein knew, or might have known, that fact; and that, under the circumstances, he, on behalf of garnishees, took the bills receivable; and that garnishees had received and collected the sum of nearly ten thousand dollars, and have still uncollected bills of value,—you will find the garnishees liable, unless you believe, also, from the proof, that the garnishees were in fact, and in good faith, creditors of Strauss & Levy in the full sum claimed by said garnishees; and that the dealings of Klein, on behalf of the garnishees, with Strauss & Levy, on the 10th day of August, were in fact fair and honest, and had with a single purpose of obtaining satisfaction of their debt; and that he received no more therefor than was reasonably worth the amount of said garnishees' said debt.' We think that this was a fair statement of the law on the subject. The whole case was before the jury. The insolvency of Strauss & Levy was known, or might have been known, to Klein; and therefore, when he undertook to deal with the assets of this insolvent firm by taking a very large part of it in payment of his own debt, a circumstance which he knew must leave many other creditors either wholly or partly unprotected, and without means for payment, it was proper that all his dealings in that matter should be fair and honest; that his claim should be a just one; that he should receive no more than what was reasonably necessary to pay his debt; and that, if the transaction was tainted with any fraud or unjust interference with the rights of creditors, it should not stand. In other words, the preliminary statement of those facts made a case which required of the garnishees a fair and satisfactory explanation of the remarkable proceedings of Mr. Klein and his partners in the whole transaction. The language we have cited also shows that there is no ground for the argument of counsel that the jury were instructed that if the garnishees received anything more, even a dollar, than was due to them of the assets of the insolvent debtors, the transaction was therefore void. Fair play and honest dealing did require that while they had the right, as is admitted by the court, to secure their debt, or to take payment for it, provided it was done fairly and honestly, and that Strauss & Levy had a right to pay them out of their assets in preference to other creditors, yet it was right and proper that they should take no more of these assets in which other creditors were interested than was, in the language of the court, 'reasonably worth the amount of the garnishees' debt.' Of course, this reasonable amount did not mean that it should be measured to a dollar or to a cent. It did not mean if what they took turned out to be worth a little more than their debt, if the notes and accounts yielded a little more than the debt in the end, that thereby the whole transaction was to be void, but it meant, and that we think was sound law, that, in presence of the circumstances under which the transfer was made, if defendants took more than what appeared to be reasonably worth the amount of their debt, it was a fraud upon the other creditors; and the court, in giving the converse of this proposition, said that, if the garnishees on that day received no more from the insolvent debtors than was reasonably sufficient to § tisfy their claim, the jury were to find for the garnishees. The court also instructed the jury that if they found for the plaintiffs they were to return a verdict for the amount of money shown by proof to have been received by the garnishees, and the value of the uncollected bills, if the sum of these did not exceed plaintiffs' debt. It is said that the garnishees could only be liable for the sum which they had actually collected out of these notes and accounts, and that, as to any of them remaining in their hands, they could not be held accountable in this proceeding. If the transfer of these choses in action to the garnishees had been a fair assignment by way of security out of which they were to pay their debt, if so much of it could be collected, then the remainder of the choses in action, whether valuable or not, could be returned by them without liability; but, as we have seen, the case goes upon the idea of a fraudulent conversion by Frieberg, Klein & Co. of assets of the insolvent debtors. By this fraud the control of the assets passed to them, and we are of opinion that, if liable at all, they were liable, not only for the money collected on such notes and accounts, but for the value of those which remained in their hands, to, at least, as the court instructed, an amount sufficient to pay the debt of Hoffheimer Bros. against Strauss & Levy. Whether there was or not such amount was a question left to a jury, and the jury found that there was. They must have found, under the instructions of the court, that enough of the assets collected remained in their hands, either in the shape of money collected, or of notes and accounts yet uncollected, but valuable, to pay the debt of Hoffheimer Bros. against Strauss & Levy. In this we see no error to the prejudice of the plaintiffs in error, and the judgment is therefore affirmed.
132.US.239	In the courts of the United States an action of ejectment is an action at law, and the plaintiff must recover on the legal title. While the title to public land is still in the United States, no adverse possession of it can, under a state statute of limitations, confer a title which will prevail in an action of ejectment in the courts of the United States, against the legal title under a patent from the United States. A deed of land sold for non-payment of taxes, which recites that the sale was made on a day which was not the day authorized by law, is void on its face, and is not admissible in evidence to support an adverse possession under a statute of limitations.	This is a writ of error to the circuit court of the United States for the eastern district of Arkansas. The action in that court was in the nature of ejectment to recover possession of real estate, brought by Jared E. Redfield, the present plaintiff in error, against William P. Parks, Charles Harper, and others. The case was submitted to the court without a jury, which made a finding of facts on which was rendered a judgment for the defendants. The principal issue in the case before that court was on the defense under the statute of limitations. The plaintiff relied upon, and introduced in evidence, a patent from the United States, dated April 15, 1875, conveying the property to the Mississippi, Ouachita & Red River Railroad Company, reciting the purchase by that company of the land in controversy, and the payment of $594.48 for it. The plaintiff, Redfield, purchased this land at a judicial sale, on a judgment against that company, for the sum of $500, and received a deed under that purchase. It further appears from the findings of the court that the railroad company made payment in full for the land September 10, 1856, and received at that time the certificate of the register of the land-office. The approval of this entry for the issue of a patent was made at the general land-office in Washington June 1, 1874. The circumstances under which the delay in the issue of a patent was had are not stated. The defendants relied upon a deed made by the county clerk of Lafayette county, Ark. to W. P. Parks and James M. Montgomery, on the 11th day of August, 1871, upon a sale for taxes for the year 1868, and upon adverse possession under the statute of Arkansas of two years in regard to claims under tax-sales, and the general statute of limitation of seven years. This action was commenced by the plaintiff on the 11th day of April, 1882. The court announced the following conclusions of law: 'First. That said tax-deed to Parks and Montgomery for said land is void, because the land was sold for the taxes of 1868, on a day not authorized by law. Second. That under the laws of this state, notwithstanding said tax-deed is void upon its face for the reason stated, it constitutes a claim and color of title sufficient to put in motion the statute of limitations in favor of any person in possession under it. Third. That the possession taken by Parks and Montgomery of said land under said tax-deed, in the manner set out in the finding of facts, constitutes in law actual, peaceable, open, notorious, and adverse possession of the whole of said land; and, said possession of said land having been taken by Parks and Montgomery as early as the month of February, 1874, and maintained continuously by them and their grantees down to the trial of this cause, the plaintiff's right of action to recover said land is barred by the two-years statute of limitation contained in section 4475 of Mansfield's Digest, and also by the seven-years statute of limitation contained in section 4471 of the same digest.' Among the requests asked by the plaintiff and refused by the court were the following declarations of law: 'Sixth. The plaintiff's title to the lands in this case, and that of those under whom he claims, dates from the issuance of the patent of the United States to the Mississippi, Ouachita & Red River Railroad Company, on the 15th day of April, 1875; and the statute did not commence running in behalf of the defendants, or any of them, until such patent was issued.' 'Eighth. That no adverse possession of land can be acquired while the title is still in the United States government, and that the patent issued on the 15th day of April, 1875, did not relate back, so as to make the possession of the defendants adverse prior to the date of the patent. Ninth. That neither the plaintiff nor the railroad company, under which he claims, could have maintained a suit of ejectment in the courts of the United States for the possession of the land described in his complaint on an equitable title, nor until the legal title had passed out of the government on the 15th April, 1875; and this action did not accrue to them until the date of the patent. Tenth. That, this suit having been commenced on the 11th day of April, 1882, within seven years from the date of the patent, the plaintiff's cause of action was not barred by the statute of limitations. Eleventh. That the deed of V. V. Smith, clerk, not being a sheriff's deed or an auditor's deed, or a deed commonly called a 'donation deed,' is not within the terms of the two-years statute pleaded by defendants, (section 4117, Gantt, Dig.;) and this action is not barred by that statute.' These rulings upon the law of the case by the court present two distinct propositions, on which error is assigned here. One of these is that which holds the seven-years statute of limitations, which is the general period of limitation prescribed for the benefit of adverse possession, to be a good defense in this case. The other is the same holding in regard to the two-years limitation law. It is apparent from the finding of the facts that the action, which was commenced on the 11th day of April, 1882, was within the seven years allowed by the statute of the time that the cause of action accrued, if that is to be computed from the 15th day of April, 1875, the date of the patent introduced by plaintiff. That such is the law in regard to the action of ejectment in the courts of the United States has been repeatedly decided. The foundation of this rule is the proposition that time does not run against the government; that no statute of limitation affects the rights of the government, unless there is an express provision to that effect in the statute, and even then it cannot be conceded that state legislation can in this manner imperil the rights of the United States, or overcome the general principle that it is not amenable to the statute of limitations or the doctrine of laches. The facts found in the present case leave it beyond question that the legal title to the property in controversy was in the United States until the issuing of the patent to the railroad company. In the courts of the United States, where the distinction between actions at law and suits in equity has always been maintained, the action of ejectment is an action at law, and the plaintiff must recover on the legal title. If it be shown that the plaintiff has not the legal title; that the legal title at the time of the commencement of the action, or at its trial, is in some other party,—the plaintiff cannot recover. The facts in the present case show that this title to the land in controversy was in the United States until the 15th day of April, 1875. Up to that time the statute of limitations could not begin to run in bar of any action dependent on this title. The plaintiff could not sue or recover in the courts of the United States upon the equitable title evinced by his certificate of purchase made by the register of the land-office. His title, therefore, being derived from the United States, the right of action at law to oust the defendant did not commence until the making of that patent. In the case of Lindsey v. Miller's Lessee, 6 Pet. 666, the defendants relied upon a patent issued by the commonwealth of Virginia, dated March, 1789, under the survey and entry made in January, 1783, and duly recorded in that year. They then proved possession for up wards of 30 years. The plaintiff introduced a patent from the United States, in which was the legal title, dated December 1, 1824, 35 years after the patent issued by the commonwealth of Virginia. The action was brought in 1832. This court, in regard to the issue thus made, expressed itself in the following terms: 'That the possession of the defendants does not bar the plaintiff's action is a point too clear to admit of much controversy. It is a well-settled principle that the statute of limitations does not run against a state. If a contrary rule were sanctioned, it would only be necessary for intruders upon the public lands to maintain their possessions until the statute of limitations shall run, and then they would become invested with the title against the government, and all persons claiming under it. In this way the public domain would soon be appropriated by adventurers. Indeed, it would be utterly impracticable, by the use of any power within the reach of the government, to prevent this result. It is only necessary, therefore, to state the case in order to show the wisdom and propriety of the rule that the statute never operates against the government. The title under which the plaintiff in the ejectment claimed emanated from the government in 1824. Until this time there was no title adverse to the claim of the defendants. There can therefore be no bar to the plaintiff's action.' The case of Bagnell v. Broderick, 13 Pet. 436, which has been a leading case in this court for many years, was an action of ejectment in which a patent fron the United States to John Robertson, Jr., was relied on by the plaintiff as being the origin of his title. The defendants relied upon certain proceedings in the United States land-office in Missouri, by which the property was deemed to have been appropriated under the act of congress concerning New Madrid lands which had been lost by the earthquake, and had been certified to Robertson, and a deed from Robertson to the parties under whom defendants claimed. But this court held that the patent of the United States, issued long afterwards to Robertson, was the strictly legal title on which plaintiff was bound to recover, and in making the decision the following language is used: 'But suppose the plat and certificate of location had been made and returned to the recorder in the name of Morgan Byrne, and that it had been set up as the better title, in opposition to the patent adduced on behalf of the plaintiff in ejectment, still, we are of opinion the patent would have been the better legal title. We are bound to presume, for the purposes of this action, that all previous steps had been taken by John Robertson, Jr., to entitle himself to the patent, and that he had the superior right to obtain it, notwithstanding the claim set up by Byrne; and, having obtained the patent, Robertson had the best title, to-wit, the fee, known to a court of law. Congress has the sole power to declare the dignity and effect of titles emanating from the United States, and the whole legislation of the federal government in reference to the public lands declares the patent the superior and conclusive evidence of legal title. Until its issuance the fee is in the government, which, by the patent, passes to the grantee, and he is entitled to recover the possession in ejectment.' Perhaps the case which presents the whole of this question in the strongest light is that of Gibson v. Chouteau, 13 Wall. 92. That was a writ of error from this court to the supreme court of Missouri, and that court had held that under the statutes of that state, by which an action of ejectment could be sustained upon an equitable right only, the bar of the statute of limitations began to run when the right of action under such equitable title accrued. The case was several times before the supreme court of that state, which finally decided in favor of the defendants on the plea of the statute of limitations, although the patent under which plaintiff claimed to recover had been issued within the 10 years which that statute allowed. In delivering its opinion that court used the following language: 'But there is another principle upon which we think the statute may be made to operate here as a bar to the plaintiff's action; and that is the fiction of relation whereby the legal title is to be considered as passing out of the United States, through the patent, at its date, but as instantly dropping back in time to the date of the location as the first act or inception of the conveyance, to vest the title in the owner of the equity as of that date, and make it pass from him to the patentee named through all the intermediate conveyances, and so that the two rights of entry and the two causes of action are thus by relation merged into one, and the statute may be held to have operated on both at once. The legal title, on making this circuit, necessarily runs around the period of the statute bar, and the action founded upon this new right is met by the statute on its way, and cut off with that which existed before.' 39 Mo. 588. This is precisely the principle asserted in the case before us. The Mississippi, Ouachita & Red River Railroad Company, under whose patent the plaintiff claims, had made the entry and received the certificate of that entry, and of the payment of the money for this land, September 10, 1856. The patent on this certificate was not issued until April 15, 1875, which was 19 years after the entire equitable interest in the land in controversy had been vested in the railroad company by virtue of the payment of the money and the register's certificate. As the title of Redfield had its inception in this proceeding, it is now argued, and the circuit court must have so decided, that the statute of limitations, instead of leaving it to commence with the issue of the patent, did run through the whole course of the possession of the defendant after the date of the issue of the register's certificate, in 1856. Whether the statutes of Arkansas would have authorized an action to recover the possession by virtue of the register's certificate or not, it is precisely the same principle as that asserted by the supreme court of Missouri in the case of Gibson v. Chouteau. The opinion of this court, delivered by Mr. Justice FIELD in that case, states with great clearness the principle that a statute of limitation does not run against the state unless it is so expressly declared, and adds that 'as legislation of a state can only apply to persons and things over which the state has jurisdiction, the United States are also necessarily excluded from the operation of such statutes.' With regard to the relation back to the inception of the title the court says: 'The consummation of the title is not a matter which the grantees can control, but one which rests entirely with the government. With the legal title, when transferred, goes the right to possess and enjoy the land; and it would amount to a denial of the power of disposal in congress if these benefits, which should follow upon the acquisition of that title, could be forfeited because they were not asserted before that title was issued.' In regard to the principle asserted by the supreme court of Missouri, the opinion says: 'The error of the learned court consisted in overlooking the fact that the doctrine of relation is a fiction of law adopted by the courts solely for the purposes of justice, and is only applied for the security and protection of persons who stand in some privity with the party that initiated proceedings for the land, and acquired the equitable claim or right to the title. The defendants in this case were strangers to that party, and to his equitable claim, or 'equitable title,' as it is termed; not connecting themselves with it by any valid transfer from the original or any subsequent holder. The statute of limitations of Missouri did not operate to convey that claim or equitable title to them. It only extinguished the right to maintain the action of ejectment founded thereon, under the practice of the state. It left the right of entry upon the legal title subsequently acquired by the patent wholly unaffected. In the federal courts, where the distinction between legal and equitable proceedings is strictly maintained, and remedies afforded by law and equity are separately pursued, the action of ejectment can only be sustained upon the possession by the plaintiff of the legal title. For the enforcement of equitable rights, however clear, distinct equitable proceedings must be instituted. The patent is the instrument which, under the laws of congress, passes the title of the United States. It is the government conveyance. If other parties possess equities superior to those of the patentee, upon which the patentissued, a court of equity will, upon proper proceedings, enforce such equities by compelling a transfer of the legal title, or enjoining its enforcement, or canceling the patent. But in the action of ejectment in the federal courts the legal title must prevail, and the patent, when regular on its face, is conclusive evidence of that title. * * * But neither in a separate suit in a federal court nor in an answer to an action of ejectment in a state court can the mere occupation of the demanded premises by plaintiffs or defendants, for the period prescribed by the statute of limitations of the state, be held to constitute a sufficient equity in their favor to control the legal title subsequently conveyed to others by the patent of the United States, without trenching upon the power of congress in the disposition of the public lands. That power cannot be defeated or obstructed by any occupation of the premises before the issue of the patent, under state legislation, in whatever form or tribunal such occupation be asserted.' 13 Wall. 101, 104. These principles are illustrated by other cases in this court, such as Rector v. Ashley, 6 Wall. 142; U. S. v. Thompson, 98 U. S. 486. The question of the two-years statute of limitation of Arkansas presents other considerations. That statute is in the following language: 'No action for the recovery of any lands, or for the possession thereof, against any person, or persons, their heirs or assigns, who may hold such lands by virtue of a purchase thereof at a sale by the collector or commissioner of state lands, for the non-payment of taxes, or who may have purchased the same from the state by virtue of any act providing for the sale of lands forfeited to the state for the non-payment for taxes, or who may hold such lands under a donation deed from the state, shall be maintained, unless it shall appear that the plaintiff, his ancestor, predecessor, or grantor, was seised or possessed of the lands in question within two years next before the commencement of such suit or action.' There can be no question but that more than two years had elapsed after the issue of the patent of the United States under which plaintiff asserts title, and after his cause of action had accrued, during which the defendants were in possession of a part, if not the whole, of the land in controversy. Therefore, if the circumstances of that possession are such as to bring it within the purview of this statute, the possession was a bar to recovery. On this subject the court declared, as conclusions of law—First, that the tax-deed under which defendants claimed is void, because the land was sold for taxes of 1868, on a day not authorized by law; second, that under the laws of this state, notwithstanding the said tax-deed is void upon its face for the reason stated, it constitutes a claim and color of title sufficient to put in motion the statute of limitations in favor of any person in possession under it; third, that the possession taken by Parks and Montgomery of said land under said tax-deed, in the manner set out in the finding of facts, constitutes in law actual, peaceable, open, notorious, and adverse possession of the whole of said land, and, said possession of said land having been taken by Parks and Montgomery as early as the month of February, 1874, and maintained continuously by them and their grantees down to the trial of this cause, the plaintiff's right of action to recover said land is barred by the two-years statute of limitation contained in section 4475, Mansf. Dig., and also by the seven-years statute of limitation contained in section 4471 of the same digest. We think it very clear that the judge was correct in holding this tax-deed to be void. It was not merely void by extrinsic facts shown to defeat it, but was absolutely void on its face. But we think that the court erred in holding that such an instrument could create color of title which would bring the case within the foregoing statute of limitations. The case of Moore v. Brown, 11 Howard, 414, brought the question before this court. The court says: 'It is disclosed upon the face of the deed that the auditor sold the land short of the time prescribed by the act. It was not, then, a sale according to law. That must have been as well known by the purchaser as it was by the auditor.' After a somewhat elaborate opinion it was certified to the circuit court, from which the case had come by division of opinion, 'that the paper offered in evidence by the defendant is a void deed upon the face of it, and was not admissible as evidence for the purpose for which it was offered,' which was to support the possession under the statute of limitations. A similar decision was made in the case of Walker v. Turner, 9 Wheat. 541. Many of the states of the Union have enacted what are called 'short statutes of limitation,' the object of which is to protect rights acquired under sales of real estate for taxes. The general purpose of these statutes is to fix a period of time running in favor of the holder under such tax-titles, after which the validity of that title shall not be questioned for any irregularity in the proceedings under which the land was sold. This object was generally attained by the enactment of short statutes of limitations, by means of which the party in possession under such defective titles can, by pleading this statute, make his title good. The brief of counsel in this case produces many instances of cases decided in the courts, under statutes of this class; and the general principle pervading them is well expressed by the court of appeals of Kentucky in the case of Trustees v. Payne, 3 T. B. Mon. 161, in which the court says: 'Instead of twenty years mentioned in the general act, but seven years is required by the act of 1809; but, to form a bar to an action, something more is required by the latter act than an adverse possession for seven years.' In Waterson v. Devoe, 18 Kan. 223, the court held that the tax-deed, which upon its face showed that it was void, did not support the possession as a bar under the short statute of limitations in that state which applied to actions for the recovery of lands sold for taxes. The court, in that case, said, quoting from the previous case of Shoat v. Walker, 6 Kan. 65: 'A tax-deed, to be sufficient, when recorded, to set the statute of limitation in operation, must of itself be prima facie evidence of title. * * * It is not necessary that it be sufficient to withstand all evidence that may be brought against it to show that it is bad, but it must appear to be good upon its face. * * * When the deed discloses upon its face that it is illegal, when it discloses upon its face that it is executed in violation of law, the law will not assist it. No action under the statute of limitations can then be brought in to aid its validity.' Similar decisions have been made in the cases of Mason v. Crowder, 85 Mo. 526; Sheehy v. Hinds, 27 Minn. 259, 6 N. W. Rep. 781; Cutler v. Hurlbut, 29 Wis. 152; Gomer v. Chaffee, 6 Colo. 314; Wofford v. McKinna, 23 Tex. 36. We do not discover in the statute of Arkansas, nor in the decisions of its courts cited by counsel for defendant, anything to contravene these views, and we think that both the weight of authority and sound principle are in favor of the proposition that, when a deed founded on a sale for taxes is introduced in support of the bar of a possession under these statutes of limitations, it is of no avail if it can be seen upon its face and by its own terms that it is absolutely void. We are satisfied, therefore, that in regard to the defense under both statutes of limitation, the declarations of law by the court were erroneous, and for that reason its judgment is reversed. And, as the finding of facts by the court is before us, and these are the only matters worth attention, it is ordered that the circuit court enter judgment for the plaintiff.
132.US.454	Pieces of ivory for the keys of pianos and organs, matched to certain octaves, sold to manufacturers, who scrape them to make them adhere to wood, and then glue them to wood, were charged with duty as manufactures of ivory, under Schedule 'A of section 2504 of the Revised Statutes of 1874, 2d ed. p. 474, and under Schedule N of section 2502 of the Revised Statutes, as enacted by the act of March 3, 1883, 22 Stat. 511. The importer claimed that they were liable to a less duty, as musical mstruments, under Schedule At of section 2504 of the Revised Statutes of 1874, 2d ed. p. 478, and under Schedule N of section 2502 of the Revised Statutes as enacted by said act of March 3, 1883, 22 Stat. 513. In a suit by him against the collector to recover the alleged excess of duty paid, the court charged the 3ury that if the articles were made on purpose to be used in pianos and organs, and were used exclusively n them, they were dutiable as musical instruments and not as manufactures of ivory- Held, that this was error; and that the articles, as imported, were manufactures of ivory.	This is an action brought in the superior court of the city of New York, and removed by certiorari, by the defendant, into the circuit court of the United States for the southern district of New York, by Otto Gerdan against William H. Robertson, collector of customs of the port to New York, to recover duties paid under protest on certain ivory pieces for the keys of pianos or organs, imported into the port of New York, and entered there, some of them in September and October, 1882, and the rest of them in January, October, and November, 1884. Upon those imported in 1882, the collector assessed a duty of 35 per cent. ad valorem, under the provision of Schedule M of section 2504 of the Revised Statutes, (2d Ed. 474,) enacted June 22, 1874, which imposes that rate of duty on 'manufactures of bones, horn, ivory, or vegetable ivory.' On the articles imported in 1884 the collector or assessed a duty of 30 per cent. ad valorem, under that provision of Schedule N of section 2502 of the Revised Statutes, as enacted by the act of March 3, 1883, (22 St. 511,) which imposes that rate of duty on 'bone, horn, ivory, or vegetable ivory, all manufactures of, not especially enumerated or provided for in this act.' The importer claimed in his protest that the goods imported in 1882 were subje t to a duty of 30 per cent. ad valorem, under that provision of Schedule M of section 2504 of the Revised Statutes of 1878, (2d Ed. 478,) which imposes that rate of duty on 'musical instruments of all kinds,' and that the goods imported in 1884 were liable to a duty of 25 per cent. ad valorem, under that provision of Schedule N of section 2502 of the Revised Statutes, as enacted by the said act of March 3, 1883, (22 St. 513,) which imposes that rate of duty on 'musical instruments of all kinds.' On appeal, the decision of the collector was affirmed by the secretary of the treasury, and suit was brought in due time. The plaintiff had a verdict at the trial, and judgment was entered for him for $345.50, to review which the defendant has brought a writ of error. The bill of exceptions states as follows: 'Plaintiff called, as his only witness, George W. Clark, who, being duly sworn, testified that he was in the employ of plaintiff; that he identified the samples produced as similar to the articles which were imported; that they are pieces for the keys of pianos or organs; that they come in packages, and are matched to certain octaves for certain instruments, to-wit, organs and pianos, five octaves for organs and seven ocatves for pianos, and are glued on the keys; that they are sawed and cut in a particular shape for that purpose, and are tapered in thickness, so that the end meets, and the shaft comes in between. 'Question. They are used for no other purpose than for pianos and organ keys? Answer. That is it, sir.' On cross-examination, this witness testified that he had never put them on pianos or organs; that there are different grades, and two sizes, of the articles in question. 'Question. Do you know how they are put on the piano? Answer. We don't do that. We sell to the piano makers and key-board makers. I have seen it done. They scrape them to make them hold to the wood; then they are put on the key-board, and then sawed out and stuck on in that way, on a large board, and then sawed out; and this, the ivory piece, is then glued on top of it, and then it is polished. A. Are the corners rounded off? A. We don't do that. We sell to the makers. Q. As a matter of fact, don't you know that the outside corners are rounded off? A. I have seen it so; yes, sir; on the pianos. We are not piano makers. We sell to the piano and key-board makers." No other evidence was offered on either side. The defendant asked the court to direct a verdict in his favor, because (1) the imported article was not a musical instrument; and, (2) it was not a completed, indispensable part of a musical instrument. This motion was denied, and the defendant excepted. The defendant then asked the court to charge the jury that, in order to find for the plaintiff, they must find that the imported articles were completed, indispensable parts of a musical instrument. But the court charged that if the articles were used exclusively for pianos and organs, the jury should return a verdict for the plaintiff, if not, for the defendant; to which instruction the defendant excepted. The court also charged that if the articles were made on purpose for pianos and organs, as musical instruments, and no other purpose, the jury might return a verdict for the plaintiff. To this instruction the defendant excepted. We think there was error in the charge of the court. The substance of the charge was that if the articles were made on purpose to be used in pianos and organs, and were used exclusively in pianos and organs, they were dutiable as musical instruments, and not as manufactures of ivory. That the articles were in themselves musical instruments cannot be gravely contended. They were ivory pieces for the keys of pianos or organs. As imported, they were simply pieces of ivory which had undergone a process of manufacture; were of a shape and size to be used for certain octaves of pianos and organs; and were sold to piano makers and key-board makers. Those persons scraped the lower surface of the ivory, to make it adhere to a piece of wood to which it was afterwards glued. In the shape in which the articles were imported, they were clearly manufactures of ivory. Neither of the statutes in question imposes on parts of musical instruments the same rate of duty which it imposes on musical instruments. By Schedule E of section 11 of the act of July 30, 1846, (9 St. 47,) a duty of 20 per cent. ad valorem was imposed on 'musical instruments of all kinds, and strings for musical instruments of whipgut or catgut, and all other strings of the same material;' and by the same act (page 45,) a duty of 30 per cent. ad valorem was imposed on 'manufactures of bone, shell, horn, pearl, ivory, or vegetable ivory.' By section 20 of the act of March 2, 1861, (12 St. 190,) a duty of 20 per cent. ad valorem was imposed on 'musical instruments of all kinds, and strings for musical instruments of whip-gut, or catgut, and all other strings of the same material;' and by section 22 of the same act (page 192) a duty of 30 per cent. ad valorem was imposed on 'manufactures of bone, shell, horn, ivory, or vegetable ivory.' By section 6 of the act of July 14, 1862, (12 St. 550,) a duty of 10 per cent. ad valorem, in addition to then existing duties, was imposed on 'musical instruments of all kinds, and strings for musical instruments of whip-gut or catgut, and all other strings of the same material;' and by section 13 of the same act (page 557) a duty of 5 per cent. ad valorem, in addition to then existing duties, was imposed on 'manufactures of bone, shell, horn, ivory, or vegetable ivory.' By Schedule M of section 2504 of the Revised Statutes of 1878, (2d Ed. 481,) a duty of 30 per cent. ad valorem was imposed on 'strings; all strings of whip-gut or catgut, other than strings for musical instruments;' and by section 2505 of said Revised Statutes (Id. 484,) 'catgut strings, or gutcord, for musical instruments,' were made free of duty. By section 2502 of the Revised Statutes, as enacted by the act of March 3, 1883, (22 St. 514,) a duty of 25 per cent. ad valorem was imposed on 'strings; all strings of catgut, or any other like material, other than strings for musical instruments;' and by section 2503 of the same enactment (Id. 518) 'catgut strings, or gut-cord, for musical instruments,' were made free of duty. It is thus seen that by the act of 1846, by the act of 1861, and by the act of 1862 provision was made for imposing a duty on parts of stringed musical instruments, by laying a duty on 'strings for musical instruments of whip-gut or cat-gut,' leaving other parts of musical instruments, imported in parts, to be dutiable under other provisions of law. So, in the Revised Statutes of 1878, and as enacted in 1883, while there is no specific duty on parts of musical instruments, as such parts, 'catgut strings or gut-cord, for musical instrmuents,' are made free of duty, leaving other parts of musical instruments to be dutiable under other provisions than that applicable to 'musical instruments of all kinds.' This view of the legislation of congress is fortified by the fact that in the Revised Statutes of 1878, and in the same as enacted in 1883 a duty is imposed on carriages and parts of carriages; on chronometers and parts of chronometers; on clocks and parts of clocks; and on watches and parts of watches. If congress had intended in either enactment of the Revised Statutes to impose the same duty on parts of musical instruments which it imposed on musical instruments, it would have been easy to impose that duty on 'musical instrument of all kinds, and parts of the same.' It is very clear to us that the fact that the articles in question were to be used exclusively for a musical instrument, and were made on purpose for such an instrument, does not make them dutiable as musical instruments. The contention of the plaintiff is thought to be supported by the fact that in the case of Foote v. Arthur, tried in the circuit court for the southern district of New Yo k early in the year 1880, and unreported, it was held that a completed violin bow was a musical instrument, and subject to duty as such under the statute, and by the fact that the treasury department acquiesced in that decision, under the advice of the attorney general of the United States. It is sufficient to say that the pieces of ivory in question were not violin bows, and that, whatever the true view may be as to violin bows, the same considerations applicable to them do not apply to the articles in question here. Attention is called by the plaintiff to the fact that the provision in the Revised Statutes, as enacted in 1883, in regard to manufactures of ivory, imposes the duty of 30 per cent. ad valorem on all manufactures of ivory 'not specially enumerated or provided for in this act.' But those words have no bearing on the present case, because the pieces of ivory in question are not specially enumerated or provided for in the act of 1883. The judgment is reversed, and the case remanded to the circuit court, with a direction to grant a new trial.
129.US.47	The improvement in percolators, for which letters patent were granted April 18, 1882, to Nathan Rosenwasser, was anticipated by an apparatus described in Geiger's Handbuch der Pharmacie, published at Stuttgart in 1830.	This is a bill in equity for the infringement of letters patent, granted April 18, 1882, to Nathan Rosenwasser, for improvements in percolators, with the following specification and claim: 'My invention relates to percolating apparatus to be employed for filtering purposes, or for making fluid extracts or decoctions, and it consists in a device constructed and adapted to operate substantially in the manner hereinafter specified. In the drawings, Fig. 1 represents my device in longitudinal section, and Fig. 2 shows the application of said device when used as a filter or in making fluid extracts. A is the main body of my percolator. B is a constricted inlet. C is the enlarged open end, which serves the double purpose of a discharge or outlet, and as an opening through which the percolator is charged with filtering substance when the device is to be used as a filter, or with any drug from which an extract is to be made. D is a perforated plate. This plate may, if desired, be replaced by any porous diaphragm or interposing substance such as filter paper, cloth, pumice, or the like. This is to prevent the drug from escaping from the percolator during its use, and it is to be secured in position by suitable means. E represents the drug from which an extract is to be made; or, if the device is to be used as a filter, then E represents charcoal, sand, or any suitable filtering material. I will describe my apparatus as employed in making fluid extracts. The container, A, is charged with any drug or substance, E, from which an extract is to be made. The drug, E, is charged into the container, A, through the enlarged mouth, C. Now, by the ordinary process and mechanism for making fluid extracts, it has heretofore been the practice to charge the menstruum into the large mouth, C; but this method made it impracticable to obtain any increased or variable pressure upon the menstruum, unless a cap-piece were fitted over the enlarged mouth, C, and a tube, or its equivalent, attached, and connected either to an elevated reservoir containing the menstruum, or else some special pressure apparatus connected with said tube. All this, in practice, is impracticable; but by the employment of my device and method it is a very easy matter to charge the container, A, and, by applying the menstruum in exactly an opposite manner from that heretofore adopted, viz., to the end of the container, A, opposite the charging month, C, to exert any desired pressure upon the menstruum. Fig. 2 of the drawings illustrates my method and mechanism, which consists, after the container, A, is charged in the usual manner through its enlarged mouth, C, as already specified, in inverting the percolator, attaching a flexible or other tube, F, to the constricted mouth, B, and applying the menstruum through said tube from an elevated reservoir, G. When thus used, the enlarged mouth, C, becomes the ultimate discharge, which has never before, to my knowledge, been true in any method heretofore known or practiced. By elevating the reservoir, G, more or less, a greater or lighter pressure is exerted by the menstruum, and it is therefore driven through the drug more or less forcibly and rapidly. This pressure, as may readily be seen, can be nicely adjusted and varied at pleasure to suit the requirements of any case. A stop-cock, H, may be used to govern the quantity of the menstruum admitted to the percolator, A. What I claim is the combination, with a vessel, G, and adjustable tube, F, of a percolator, A, having a large filling and discharge orifice at its lower end, and a restricted opening, B, at its upper end, with which connects the lower end of the adjustable tube or pipe, F, substantially as set forth.' The description of the percolator, and of the mode of using it to make fluid extracts or decoctions of drugs, amounts to this: The percolator is a cylinder wholly open at the lower end, and with a cover at the upper end, having a small opening, attached to which is a flexible or adjustable tube leading from a reservoir of the liquid to be used for steeping the drug. The percolator is turned bottom up while the drug is put in, and a perforated or porous diaphragm inserted, to hold the drug in place. It is then turned bottom down again. The pressure of the liquid, and consequently the quickness of its passage through the drug, are increased or diminished by elevating or lowering the reservoir, or by turning a stop-cock in the tube; and the extract is discharged through the bottom of the percolator into a vessel placed below. The novelties suggested consist in having one end of the percolator open, serving both to receive the drug and to discharge the extract; in turning the percolator bottom up to put in the drug, and bottom down to let the extract drip out; in having a perforated or porous diaphragm to hold the drug in place; and in regulating the pressure of the liquid by means of a tube from the reservoir to the small opening in the covered end of the percolator. But, passing over the difficulty that the diaphragm is not claimed as part of the combination patented, neither the percolator open at one end, the diaphragm, the inversion of the percolator, the insertion of the tube in the small opening in the covered end, nor the making that tube flexible, and with a stopcock, is new. All those elements appear in the Real press, as modified by Beindorf, described in Geiger's Handbuch der Pharmacie, published in 1830, at Stuttgart, in Germany, which is an exhibit in the case, and a translation of the material parts of which, (volume 1, pp. 157-160,) verified by the oath of a witness for the defendant, and included in the record, appears, though not quite grammatical, to be substantially accurate, notwithstanding the opposing testimony introduced by the plaintiff to impugn its correctness. It will be sufficient to quote from that translation the following passages:1 'The Real press consists principally of a hollow cylinder, which contains the powdered substance to be exhausted between two perforated plates, tightly packed, so that the substance cannot move to [in] either direction. If the cylinder is open at both ends, a cover is fitted air-tight at one end, having a hole in the center, into which a long tube is fitted, also air-tight. Between the cover and the perforated plate mentioned some space must remain. In extracting, the cylinder is placed vertical, [upright,] so that a vessel for gathering the liquid may be placed underneath.' 'A very practical change in the construction of the Real press has been introduced by Beindorf. The cylinder is fitted into a chair, [frame,] the cover or seat of which is movable, so that by turning [inverting] the same the press may be filled and connected with the tube.' 'The filled cylinder, turned bottom up, is placed upon a chair [frame] having a hole in the middle, in which the cylinder fits, and around which he [it] rests.' 'In the opening in the bottom a tube is fitted, which may be made of tinned iron, [tin plate,] glass, wood, leather, etc.' 'Near the upper end of the tube is placed a vessel containing the menstruum, [liquid solvent,] the surface of which must be somewhat lower than the end of the tube. A syphon is now introduced into the liquid and in the tube, air sucked through the tube, so that the liquid will commence to flow through the syphon into the tube, which is thereby filled. The column of menstruum [liquid] thus acts pressing and dissolving upon the substance to be extracted. It penetrates it, and arrives, laden with the soluble matter contained in the substance, at the lower end of the apparatus, often in a syrupy consistence.' 'In order to control the apparatus, stop or continue the operation, the tube is provided with a cock, which may be closed if necessary, or the upper end of tube may be closed after removing the syphon.' This court concurs in opinion with the circuit judge that the plaintiff's contrivance is not new, and that, if it were new, there would be grave doubt whether it involved any invention. 22 Fed. Rep. 841. As the plaintiff's contrivance had been anticipated in the German publication half a century before, it is unnecessary to decide whether, if new, it would have been patentable. Decree affirmed.
131.US.22	The denial of a change of venue, moved for on the affidavit of the party's agent to the state of public opinion in the county in which the action is brought, is not reviewable by this court on error to the Supreme Court of a Territory, even if a subject of appeal to that court from the trial court under the territorial statutes. In an action against the proprietors of a stage coach, for an injury caused to a passenger by the misbehavior of one of the horses, evidence of subsequent similar misbehavior of the horse is admissible, in connection with evidence of his misbehavior at and before the time of the accident, as tending to prove a vicious disposition and fixed habit. In assessing damages for a personal injury caused by negligence, the jury may rightly be instructed to take into consideration the plaintiff's bodily and mental pain and suffering, taken together, and necessarily resulting from the original injury. In an action at law for a personal injury, in which damages have been assessed by a jury at an entire sum, the court is not authorized, upon a motion for a new trial for excessive damages and for insufficiency of the evidence to justify the verdict, to enter an absolute judgment, according to its own estimate of the damages which the plaintiff ought to have recovered, for a less sum than assessed by the jury; and either party is entitled to a reversal of such a judgment by writ of error.	This action was brought April 4, 1882, in a district court in the county of Deer Lodge and territory of Montana, against Gilmer and others, common carriers of passengers for hire by stage-coaches between the towns of Deer Lodge and Helena, by Kennon, a passenger in one of those coaches, to recover damages for personal injuries sustained by him on June 30, 1879. The complaint alleged that the defendants were guilty of negligence in failing to provide a safe and competent driver and safe and well-broken horses, by reason of which, and of the negligence and mismanagement of their servants, the horses became unmanageable, broke the pole of the coach, and took fright, so that it was apparently unsafe for the plaintiff to remain in the coach, and he jumped to the ground, and in so doing broke his leg, and it became necessary to amputate it, whereby he sustained damages in the sum of $25,000, and was obliged to pay $750 for necessary medical and surgical expenses. The answer denied these allegations. Before a jury had been called, the defendants moved for a change of venue, on the ground that an impartial trial could not be had in the county of Deer Lodge; and in support of the motion filed an affidavit of one Riddle, deposing 'that he is agent of defendants in the above-entitled cause; that he resides in the county of Deer Lodge, where said action is depending; that he is acquainted with and knows the general sentiments and opinions of the public in reference to said action and the parties thereto, and from his knowledge of such public opinion has reason to believe, and does believe, that the defendants cannot have a fair and impartial trial of said cause in the county of Deer Lodge; that the general sentiment of the public in said county is prejudicial to the defendants, as far as concerns said action; that one trial has already been had of said cause in this county, in which heavy damages were awarded to the plaintiff by the jury which tried said cause; that said verdict and the judgment rendered thereon have been generally canvassed and commented upon by the public in a manner favorable to the plaintiff and unfavorable to the defendants, and thereby has produced a general prejudice against the defendants which cannot fail to have an influence on the second trial of said cause.' The court withheld its decision on the motion until a jury had been called and examined on their voir dire, and then denied it, and the defendants excepted to the denial. At the trial the defendant took exceptions to evidence introduced by the plaintiff, and to instructions given to the jury at his request. The jury returned a verdict for the plaintiff, assessing his damages at 'the sum of $20,000 for general damages, and also for the sum of $750 for medical expenses and surgical operations.' The defendants moved for a new trial, for excessive damages appearing to have been given under the influence of passion or prejudice, for insufficency of the evidence to justify the verdict, and for errors of law in the rulings excepted to. The motion was denied, and judgment entered on the verdict, and the defendants appealed to the supreme court of the territory, which ordered the judgment to be reduced to the sum of $10,750, and affirmed it for this amount. Its opinion is reported in 5 Mont. 257, 5 Pac. Rep. 847. Writs of error were sued out by both parties, by the defendants on January 1, 1885, and by the plaintiff on May 1, 1885, both returnable at October term, 1885; and the plaintiff's writ of error was docketed first in this court. The questions arising out of the exceptions taken by the defendants to the rulings of the inferior court present no difficulty. By the statutes of the territory, 'the court may, on good cause shown, change the place of trial, when there is reason to believe that an impartial trial cannot be had therein;' and an appeal lies to the supreme court of the territory form an order granting or refusing a new trial, or from an order granting or refusing to grant a change of venue. Code Civil Proc. Mont. 1879, §§ 62, 408; act of amendment Feb. 23, 1881, § 7. But the statutes of the territory cannot enlarge the appellate jurisdiction of this court. The granting or denial of a change of venue, like the granting or refusal of a new trial, is a matter within the discretion of the court, not ordinarily reviewable by this court on writ of error. McFaul v. Ramsey, 20 How. 523; Kerr v. Clampitt, 95 U. S. 188; Railway Co. v. Heck, 102 U. S. 120. And the refusal to grant a change of venue on the mere affidavit of the defendants' agent to the state of public opinion in the county clearly involves matter of fact and discretion, and is not a ruling upon a mere question of la . The only objection to the admission of evidence, relied on in argument, is that the plaintiff, who introduced evidence tending to support the allegations of his complaint, as well as evidence that one of the leading horses in the defendants' coach had been fractious and vicious on former occasions, was permitted to introduce evidence that in March, 1881, twenty months after the accident, this horse, when being driven in a buggy, kicked and broke the pole, and tried to run away. But evidence of subsequent misbehavior of the horse might properly be admitted, in connection with evidence of his misbehavior at and before the time of the accident, as tending to prove a vicious disposition and fixed habit, and to support the plaintiff's allegation that the horse was not safe and well broken. The length of time afterwards to which such evidence may extend is largely within the discretion of the judge presiding at the trial. As observed by Chief Justice BIGELOW, delivering the judgment of the supreme judicial court of Massachusetts, overruling exceptions to the admission of evidence of the conduct of a horse as long after the accident as in the case at bar: 'The objection to the evidence relating to the habits of the horse subsequent to the time of the accident goes to its weight, rather than to its competency. The habit of an animal is in its nature a continuous fact, to be shown by proof of successive acts of a similar kind. Evidence having been first offered to show that the horse had been restive and unmanageable previous to the occasion in question, testimony that he subsequently manifested a similar disposition was competent to prove that his previous conduct was not accidental or unusual, but frequent, and the result of a fixed habit at the time of the accident.' Todd v. Rowley, 8 Allen, 51, 58. To the same effect are Maggi v. Cutts, 123 Mass. 535; and Chamberlain v. Enfield, 43 N. H. 356. The defendants' exceptions to the instructions on the question of their liability to the plaintiff are based upon some expressions in the fifth and sixth instructions given at the plaintiff's request, considered separately, and disregarding subsequent and perfectly definite instructions, which put it beyond doubt that the jury could not have been misled. The qualification supposed to be omitted in the sixth instruction is distinctly stated in the seventh, and the supposed implication in the fifth instruction is absolutely refuted by the twelfth instruction given at the request of the defendants themselves. It would therefore be a waste of time and space to state or to comment upon those instructions at greater length. The remaining exception taken at the trial is to the instruction on the measure of damages, by which the jury were directed that they should assess the general damages claimed 'in such sum as will compensate the plaintiff for the injury received, and in so doing may take into consideration his bodily and mental pain and suffering, both taken together, but not his mental pain alone, the inconvenience to him of being deprived of his leg, and loss of time and inconvenience in attending to his business generally, from the time of the injury to the present time, such as the plaintiff may have proved, and the jury are satisfied, to a reasonble certainty, inevitably and necessarily resulted from the original injury.' The defendants object to this instruction that the jury were permitted to assess damages for mental suffering. But the instruction given only authorized them, in assessing damages for the injury caused by the defendants to the plaintiff, to take into consideration 'his bodily and mental pain and suffering, both taken together,' ('but not his mental pain alone,') and such as 'inevitably and necessarily resulted from the original injury.' The action is for an injury to the person of an intelligent being; and when the injury, whether caused by willfulness or by negligence, produces mental as well as bodily anguish and suffering, independently of any extraneous consideration or cause, it is impossible to exclude the mental suffering in estimating the extent of the personal injury for which compensation is to be awarded. The instruction was in accord with the opinions of this court in similar cases. In Railroad Co. v. Barron, (decided at December term, 1866,) Mr. Justice NELSON, delivering judgment, in giving the reasons why the damages in an action brought against a railroad corporation by a person injured by its negligence must depend very much on the good sense and sound judgment of the jury upon all the facts and circumstances of the particular case, said: 'There can be no fixed measure of compensation for the pain and anguish of body and mind, nor for the loss of time and care in business, or the permanent injury to health and body.' 5 Wall. 90, 105. The case of McIntyre v. Giblin, (decided at October term, 1879,2) is directly in point. That was an action to recover damages for the careless and negligent shooting and wounding of Giblin by McIntyre, and the jury were instructed that in computing damages they might take into consideration 'a fair compensation for the physical and mental suffering caused by the injury,' It was argued in behalf of McIntyre that the action being for a negligent one, the instruction was erroneous, because one, the instructin was erroneus, because the words 'and mental' were included. But the supreme court of the Territory of Utah held otherwise. 2 Utah, 384. And this court affirmed its judgment, Chief Justice WAITE saying: 'We think, with the court below, that the effect of this instruction was no more than to allow the jury to give compensation for the personal suffering of the plaintiff caused by the injury, and that in this there was no error.' The most serious question arises upon the judgment of the supreme court of Montana, reducing the judgment of the inferior court from $20,750 to $10,750, and affirming it for this amount. Both parties contend that this judgment was erroneous, and should be reversed, but they are not agreed as to the result of a reversal. The plaintiff contends that it must be to affirm the judgment of the inferior court, in accordance with the verdict, for the larger sum, while the defendants contend that a new trial of the whole case must be ordered. The judgment of the supreme court of the territory, reducing the amount of the verdict and the judgment of the inferior court thereon, without submitting the case to another jury, or putting the plaintiff to the election of remitting part of the verdict before rendering judgment for the rest, was irregular, and, so far as we are informed, unprecedented; and the grounds assigned for that judgment in the opinion sent up with the record, as required by the rules of this court, are far from satisfactory. Those grounds were, in substance, that the court, applying the rule that the verdict of a jury will not be disturbed if there is evidence to support it, unless it seems to have been the result of passion or prejudice, was satisfied that the clear weight of the testimony strongly favored the defendants' position that there was no negligence on their part, and the plaintiff's injury was the result of unavoidable accident, and that 'this large verdict comes from something outside of the testimony;' as well as that 'if the case had been between two strangers unknown to the jury, and tried on this evidence, if there had been a verdict at all for the plaintiff, it would have evidence does not support this verdict,'—the evidence does not support this verdict,' —the legitimate inference from all which would seem to be that the whole verdict was tainted by passion or prejudice,—yet the court, because it could not 'say that there is no evidence to support a verdict for such an amount as the plaintiff ought to recover,' forth with proceeded to adjudge that the verdict and the judgment thereon be reduced to what in its opinion was such an amount, without apparently considering the question of its power to do this. Mantle v. Noyes, 5 Mont. 274 5 Pac. Rep. 856. The seventh article of amendment of the constitution declares that, 'in suits as common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law.' This article of the constitution is in full force in Montana, as in all other organized territories of the United States. Act May 26, 1864, c. 95, § 13, (13 St. 91;) Rev. St. § 1891; Webster v. Reid, 11 How. 437. In accordance therewith, the Code of Civil Procedure of Montana provides that 'an issue of fact must be tried by a jury, unless a jury trial is waived, or a reference is ordered by consent of the parties.' Section 241. That Code authorizes the court in which a trial is had, or the supreme court of the territory on appeal, to set aside a verdict and grant a new trail 'for excessive damages appearing to have been given under the influence of passion or prejudice,' or 'for insufficiency of the evidence to justify the verdict.' Sections 285, 408; act of amendment 1881, § 7. And by section 428 of that Code: 'Upon an appeal from a judgment or order, the appellate court may reverse, affirm, or modify the judgment or order appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties; * * * and may, if necessary or proper, order a new trial.' But this section does not authorize the appellate court to render a judgment which the lower court could not have rendered. Under these statutes, as at common law, the court, upon the hearing of a motion for a new trial, may, in the exercise of its judicial discretion, either absolutely deny the motion, or grant a new trial generally, or it may order that a new trial be had unless the plaintiff elects to remit a certain part of the verdict, and that, if he does so remit, judgment be entered for the rest. Hopkins v. Orr, 124 U. S. 510, 8 Sup. Ct. Rep. 590; Cattle Co. v. Mann, 130 U. S. 69, ante 458. And if the pleadings and the verdict afforded the means of distinguishing part of the plaintiff's claim from the rest, this court might affirm the judgment upon the plaintiff's now remitting that part. Bank v. Ashley, 2 Pet. 327. But this court has no authority to pass upon any question of fact involved in the consideration of the motion for a new trial; and, in a case in which damages for a tort have been assessed by a jury at an entire sum, no court of law, upon a motion for a new trial for excessive damages and for insufficiency of the evidence to support the verdict, is authorized, according to its own estimate of the amount of damages which the plaintiff ought to have recovered, to enter an absolute judgment for any other sum than that assessed by the jury. By the action of the court in entering an absolute judgment for the lesser sum, instead of ordering that a judgment for that sum should be entered if the plaintiff elected to remit the rest of the damages, and that if he did not so remit there should be a new trial of the whole case, each party was prejudiced, and either, therefore, is entitled to have the judgment reversed by writ of error. The plaintiff was prejudiced, because he was deprived of the election to take a new trial upon the whole case. The defendants were prejudiced, because, if the judgment for the lesser sum had been conditional upon a remittitur by the plaintiff, the detendants, if the plaintiff had not remitted, would have had a new trial generally; and if the plaintiff had filed a remittitur, and thereby consented to the judgment, he could not have sued out a writ of error, and the defendants would have been protected from the possibility of being obliged in any event to pay the larger sum: whereas, upon the absolute judgment entered by the court, without any election or consent of the plaintiff, the plaintiff had the right to sue out a writ of error; and he availed himself of that right, nd docketed his writ of error in this court before the defendants docketed their writ of error. The defendants were thus put in the position of being obliged to contest the plaintiff's writ of error, in order to defend themselves against being held liable for the larger sum, as the plaintiff contended that they must be upon this record. The erroneous judgment of the supreme court of the territory being reversed, the case will stand as if no such judgment had been entered; and that court will be at liberty, in disposing of the motion for a new trial according to its view of the evidence, either to deny or to grant a new trial generally, or to order judgment for a less sum than the amount of the verdict, conditional upon a remittitur by the plaintiff. Judgment reversed, and case remanded to the supreme court of Montana for further proceedings in conformity with this opinion; each party to pay one-half the expense of printing the record and other costs in this court.